(1) The presiding officer may grant a petition for intervention at any time, upon determining that the petitioner qualifies as an intervenor under any provision of law and that the intervention sought is in the interests of justice and will not impair the orderly and prompt conduct of the proceedings.(
2) If a petitioner qualifies for intervention, the presiding officer may impose conditions upon the intervenor’s participation in the proceedings, either at the time that intervention is granted or at any subsequent time. Conditions may include:
(a) Limiting the intervenor’s participation to designated issues in which the intervenor has a particular interest demonstrated by the petition; and(
b) Limiting the intervenor’s use of discovery, cross-examination, and other procedures so as to promote the orderly and prompt conduct of the proceedings; and
(c) Requiring two or more intervenors to combine their presentations of evidence and argument, cross-examination, discovery, and other participation in the proceedings.
(3) The presiding officer shall timely grant or deny each pending petition for intervention, specifying any conditions, and briefly stating the reasons for the order. The presiding officer may modify the order at any time, stating the reasons for the modification. The presiding officer shall promptly give notice of the decision granting, denying, or modifying intervention to the petitioner for intervention and to all parties.
Homeless encampments dot almost every city and many unincorporated areas in Southern California and, as any visitor to San Francisco knows, the legions of the unhoused are not limited to Los Angeles or San Diego.
But Los Angeles city and county, which counted 66,000 homeless a year ago, is the undisputed epicenter of cardboard structures and plastic tents, spilling out over sidewalks and onto streets, collecting under almost every highway underpass and along the cement river beds of the region. Every single person “living rough” is a unique tragedy. A judgment is coming, and soon.
Federal District Court Judge David O. Carter now sits in judgment in a civil suit brought last March by residents and business leaders against the city and county. The plaintiffs charge that the local governments have wasted public funds, endangered citizens and ignored their duty as the homeless crisis has spread. They are seeking immediate relief and action. Many say Carter will rule in the plaintiffs’ favor soon.
Carter is not a judge who sits mulling things in his chambers; he is well known for taking the toughest cases and issuing stern orders. This winter, Carter held a hearing in the heart of Los Angeles’s Skid Row, a sprawling 50 blocks of dystopia downtown. It’s far from the only encampment of the unhoused, but it is rife with violence against women, homeless veterans, the addicted and the mentally ill. To spend a day in Skid Row is an awakening. To spend a night there, I suspect, would be harrowing.
Carter has warned in previous orders that the situation reminds him of the massive government resistance to desegregation beginning in the 1950s and of indifference by government to overwhelming prison overcrowding in the past decade. On both occasions, federal district courts took over as state and local governments broke down. Many citizens and not a few officials want Carter to place the city and county in receivership, seize the vast resources allocated but ineffectively spent or hoarded and use the thousands and thousands of city and county properties to rehouse the homeless.
The case has attracted the interest of parties from every corner of the culture and region. To this conservative professor of constitutional law, there is overwhelming evidence of past intentional discrimination on the basis of race and gender by the local governments. Nor has it been easy for faith-based groups to help the people who are unhoused; the City of Los Angeles excludes many faith-based groups from ministering to the desperate because of the groups’ insistence on sober living within their walls. Big Law — the city’s most influential lawyers — have joined the legal fray on behalf of the destitute, interest groups and property owners denied use of their property by encampments two and three deep on sidewalks and streets.
Mayor Quinton Lucas of Kansas City, Mo., is among the nation’s many mayors dealing with the homeless in new ways. He’s open to allocating much of the stimulus money headed toward his city — some $200 million — to a fund from which the interest would be spent on housing stock and addiction and mental health services to his city’s 1,800 to 2,000 unhoused people. Other jurisdictions across the country should consider banking their stimulus and using it as a permanent endowment for homeless relief — the problem is never “solved” but can be managed if done carefully, preserving capital and spending the interest on the ever-changing face of homelessness.
Could a judge order a local government to set aside stimulus money and use those funds, where needed, to stem the rising tide of homelessness? Some legal observers who are following the case believe the judge may be so frustrated with the executive and legislative inaction that such an order is conceivable.
Under this theory, Carter could seize not only the incoming stimulus funds — perhaps a billion or more for the city and county — along with the billion-plus already voted in bonds by local residents to address the crisis — and sweep away the deadlocked bureaucracy that hasn’t fixed the problem. Everyone would cheer.
In its place, he could take the list of available properties already provided to the court — there are more than 14,000 available properties owned by local governments in the county — and invite the private sector to construct temporary and permanent housing across the sprawling geography of the region. There is no lack of space or money, only will and purpose.
Carter has spent a year building a record, holding hearings, probing various agencies. If he finds that circumstances and inaction by elected authorities compel him to act, he will have the broad support of the public, the legal community and probably both the left and right appointees of the 9th Circuit Court of Appeals.
The homeless crisis in California cries out for the third branch of government to step in where the first two have failed so comprehensively.
This calls into question how Disney and the producers of The Lone Ranger western series were able to get away with throwing their weight around so easily. Intimidation works. The first thing we must do is kill all the lawyers.
One reason cookbooks are so inexpensive when other texts are not is recipes are not protected by copyright. As it turns out, clothing designs and costumes aren’t either.
Nevertheless, Disney had a cow some years ago when a model dressed as Snow White waltzed into the Academy Awards presentation event in an effort to amplify the glamour and fun. Disney was having none of it and publicly complained its copyright was violated while threatening to sue the Academy. (“Nobody asked US for permission!”) The Academy cringed, groveled, and apologized profusely. The lawyers left the dispute empty handed when Disney accepted this vindication, or Mexican standoff–two scorpions in a bottle?
The actor who invested his career as the Lone Ranger in the TV western of yesteryear must have invested his gains from the role badly as he took to touring shopping centers in costume for income in his retirement. The producers of the series decided they didn’t like this instance of busking, successfully threatening the elderly Masked Man with a copyright lawsuit. “The Lone Ranger always upholds the law,” the retired TV hero said. It was rumored he subsequently applied for food stamps.
Most readers likely know Snow White was published in 1812 and any costume copyright claim was moot even had it been in 2012. The elderly Masked Man was bullied in the same manner as the Academy, but had far fewer resources with which to defend himself.
A $291 Adobe cancelation fee has provoked fierce criticism of the creative software company.
A post from a customer has gone viral on Twitter, after he discovered that he would have to pay nearly $300 to bring his Creative Cloud subscription to an end.
It has sparked a discussion about Adobe’s practices, with many others coming forward to say that they too have faced extremely steep cancelation fees when they’ve tried to cut ties with the company.
A screenshot uploaded to the micro-blogging site by Twitter user @Mrdaddguy showed that they faced a $291.45 fee to cancel their Adobe Creative Cloud plan.
At the time of publication the tweet has attracted more than 13,000 retweets, more than 4,000 quote tweets, and more than 70,000 likes.
Twitter users have been almost universally in agreement in their criticism of the company, with some describing the cancelation fee as “absurd”, “disgusting,” and likening it to being held hostage by the company.
“Adobe has been holding me hostage for the better part of a year on a free trial that magically converted to a yearlong subscription with a wild cancellation fee,” wrote Twitter user Laura Hudson. “Blink twice if they have you too.”
Some have weighed into the conversation by suggesting alternatives to Adobe’s suite of products, such as Clip Studio Paint, Procreate, Blender, Krita, Paint tool Sai, many of which are either free to use or available as one-time purchases.
Others, meanwhile, are arguing that Adobe’s penalty fees are so severe that it should be considered “morally correct” to pirate the company’s software in revenge.
“Adobe on their hands and knees begging us to pirate their software,” wrote Twitter user JoshDeLearner.
“This thread is a great reminder of why it’s morally correct to pirate Adobe products,” wrote Dozing Starlight. A multitude of similar tweets can be found here.
by looking up “adobe cancel fee” you can instantly find numerous people talking about this everywhere. what essentially happens is that you usually sign up for the full adobe creative cloud programs or multiple programs as you so wish, and pay monthly for them.— asgore enjoyer 💖 (@MRDADDGUY) April 12, 2021
however when you enter the subscription, you are usually not given the terms of service to read over in detail at all! you are supposed to directly go and find this information that despite paying a monthly fee, you are actually in an annual one and if you try to cancel early,— asgore enjoyer 💖 (@MRDADDGUY) April 12, 2021
you will be charged a ridiculous amount to make up for the charges you “didn’t pay” for the year. and the most infuriating thing about all of this is that you are not even shown this information when purchasing!— asgore enjoyer 💖 (@MRDADDGUY) April 12, 2021
Newsweek has asked Adobe for comment, and this article will be updated with the company’s response.
There have also been widespread complaints from customers who say that they thought they had subscribed to one of Adobe’s services on a monthly basis, only to find that they were actually on an annual contract.
Adobe’s cancelation terms are not consistent across its various subscriptions and packages.
For instance, the firm’s Subscription and Cancellation Terms for a Creative Cloud, Document Cloud and Acrobat annual contract, paid monthly, state that customers who cancel after 14 days will be “charged a lump sum amount of 50% of your remaining contract obligation and your service will continue until the end of that month’s billing period.”
However, the same product is also available on a month to month subscription plan, which states that “Should you cancel after 14 days, your payment is non-refundable, and your service will continue until the end of that month’s billing period.”
Twitter user @Mrdaddguy added that they managed to successfully swerve the cancelation fee after contacting Adobe’s customer support team.
For over thirty (30) years, Washington has had a statutory schema which allows creditors to recover “fraudulent” transfers of money and other types of property directly from the persons or entities who received the “fraudulent” transfer. The statutory schema is called Uniform Fraudulent Transfer Act and/or Uniform Voidable Transactions Act. RCW 19.40.900
Any transfer of an asset to a third party or incurring of an obligation to a third party may be considered “fraudulent” under the Uniform Voidable Transfers Act. This generates a considerable amount of litigation, when a struggling or indebted business transfers assets to its owners, owners’ close relatives, or other businesses. A creditor seeking to enforce a debt against a business or company can challenge any transfer on the basis that the transfer was done with intent to hinder, delay, or defraud creditors.
It is important to note that the Uniform Voidable Transfers Act recognizes that the “fraudulent” transfer by a business to its owners or to another business may not be intentionally “fraudulent.” In other words, the Uniform Fraudulent Transaction Act will recognize that a transaction can be “constructively” fraudulent even if there was no actual fraudulent intent. In cases of a constructive fraudulent transfer, a creditor need only establish that a transfer was made to a insider of the business or that the business did not receive reasonably equivalent value in exchange and that one or more of the following three factors was present:
The debtor was insolvent at the time of the transfer or insolvent as a result of the transfer or obligation (voidable only as to present creditors). RCW 19.40.051(1)
The debtor was engaged in or about to engage in a business or a transaction for which the debtor’s remaining assets were unreasonably small in relation to the business or transaction (fraudulent as to both present and future creditors). RCW 19.40.041(a)(2)(i)
The debtor intended to incur, or believed or reasonably should have believed that he or she would incur, debts beyond his or her ability to pay as they became due (fraudulent as to both present and future creditors). RCW 19.40.041(a)(2)(i)
If a creditor can prove constructive fraud, then the creditor can try to recover the property (which can include money) from the actual person who received the property or money—the “transferee” RCW 19.40.071 The Uniform Fraudulent Transfer Act refers to this as “Avoidance of the transfer or obligation to the extent necessary to satisfy the creditor’s claim.” RCW 19.40.071(1)(a). A creditor also may be able to obtain an injunction, or court order, preventing further transfer of the property until their lawsuit is resolved against the business. RCW 19.40.071(1)(b) and RCW 19.40.071(1)(c)(i)
Our firm represents companies and business owners prosecuting claims or defending claims under the Uniform Fraudulent Transfer Act. We can provide advice to businesses regarding potential transfers and whether they could implicate the provisions of the Uniform Fraudulent Transfer Act. If necessary, our firm will litigate in Washington Courts and Federal Courts—including defending against claims brought by the Internal Revenue Service, Washington Department of Revenue or other governmental authorities. Please contact our firm with any questions, we will provide a free consultation.
Mr. Bomsztyk’s practice encompasses all aspects of small business representation including incorporation, financing, contract/lease review, negotiations, dispute resolution, and litigation. Mr. Bomsztyk represents a wide variety of business including internet startups, general contractors and specialty subcontractors, real estate developers, renowned artists, retailers, mining operations, and providers of professional services.
In addition to commercial matters, Mr. Bomsztyk maintains an active practice representing injured individuals in their personal injury claims as well as advocating for criminal defendants in appellate, post-conviction and immigration proceedings.
Business, Corporate and Transactions, Commercial and Civil Litigation, Administrative Law, Personal Injury, Criminal Defense, Franchise Law
U.S. District Court, Western District of Washington
Fordham University School of Law, J.D.
University of Wisconsin-Madison, B.A.
RECENT NOTABLE RESULTS
After a month-long jury trial, obtained a complete defense verdict for franchisor being sued by multiple franchisees and successor franchisor for violations of Washington’s Franchise Investment Protection Act and other breach of contract claims.
After trial, obtained complete reversal of industrial insurance premiums assessed against trucking company by Washington’s Department of Labor & Industries.
Obtained a hung jury for a Defendant with a blood alcohol limit above .11 and charged with driving under the influence. After the trial, successfully renegotiated the charge with the prosecutor so that the Defendant could plead to a significantly lesser charge and receive no jail time or other conditions associated with a conviction for driving under the influence.
PERSONAL INJURY LITIGATION:
Settled a personal injury claim by an inmate of county correctional facility for $250,000.
Settled a personal injury claim by a pedestrian struck by a bus for $150,000.
Settled the claim of a homeowner injured by a contractor during a remodel for $125,000.
Millions of dollars obtained for injured individuals for their medical malpractice, hospital malpractice, and nursing home malpractice claims subject to confidentiality provisions.
Corporate counsel for scores of Washington small businesses advising, negotiating and drafting: joint venture agreements, commercial leases, purchase and sale agreements, licensing/franchise agreements, noncompetition and other employment agreements.
Negotiated and drafted a multi-million dollar construction contract on behalf of the general contractor for a condominium conversion of a historic building in Seattle, Washington.
Negotiated and drafted the terms of a stock purchase buy out whereby one shareholder bought out the remaining shareholder and acquired full ownership of a well known retail brand.
Successful defense of dermatologist’s medical license accused of violating Washington Department of Health regulations governing medical spas.
Successful defense of mortgage brokers’ license accused of violating Washington Department of Financial Institution regulations governing the mortgage industry.
Successful savings of hundreds of thousands of dollars representing small businesses in Department of Revenue, Labor & Industries, and Employment Security Department audits, charges and hearings. Scores of successful representations in various governmental administrative hearings and before the board of industrial insurance appeals.
Litigation on behalf of commercial landlords and commercial tenants settling millions of dollars of disputed lease provisions.
Litigation on behalf of both creditors and debtors settling millions of dollars in disputed debts.
Litigation on behalf of business partners negotiating and settling disputed relationships and allowing businesses to remove partners and/or partners to be released.
APPELLATE/POST-CONVICTION CRIMINAL DEFENSE:
Filed a motion for new trial, after Defendant was convicted by a jury after a three-day trial. Through thorough investigation and persuasive argument, convinced the trial judge to reverse the jury’s verdict and dismiss the case against the Defendant. The defendant was saved from imminent deportation to Somalia.
Filed a motion to withdraw guilty pleas on the basis Defendant was incompetent to enter the pleas due to extreme schizophrenia. Through thorough investigation and persuasive argument, convinced the judge to allow the Defendant to withdraw guilty pleas and dismiss the charges. The defendant was saved from imminent deportation to Cambodia.
After being sentenced by a King County Superior Court judge for two separate felonies causing an increase in client’s offender score and sentence, appealed to the Washington State Court of Appeals, Division I arguing that the two felonies were part of the same criminal conduct and should not be sentenced separately. The Court of Appeals agreed and remanded the case back to King County Superior Court to resentence client.
“Litigating For Small Business Clients. Realities & Strategies” Presented to the King County Bar Association
“Structuring Creative Collaborations. Simple Legal Steps To Protect Your Ideas, Friendships & Sanity” Presented to the City of Seattle-Office of Film + Music
“Your Business’ First Steps. A Primer On Partnerships, Incorporation/LLC, Joint Ventures Traditional Funding & Crowdfunding” Presented to William Factory Small Business Incubator
A transfer occurs anytime ownership of an asset changes from one person to another, regardless of whether compensation is received.
Example: All of these are transfers – buying a cup of coffee, giving away a car, purchasing a house or selling used clothing.
Why do transfers matter?
Transfers matter because if a client or their spouse transfers an asset away and does not receive adequate compensation in return, it may result in a penalty period during which the client cannot receive Medicaid-funded long-term care (LTC) services. The length of the penalty is based on the “uncompensated value” that was transferred away. The idea is that the client should have used the asset to provide for their LTC, rather than transferring it away and Medicaid would not pay for LTC for the time the transferred assets could have paid.
When do transfer rules and penalties apply?
Transfer rules and penalties apply to applicants for or recipients of:
Institutional Medicaid services (for people physically in a medical institution), except those on the hospice program or the program for all-inclusive care for the elderly (PACE).
Home and community-based (HCB) waiver services through home and community services (HCS) or the developmental disability administration (DDA).
The term “LTC” is used to describe the subset of long-term services and supports (LTSS) that use institutional Medicaid rules. Institutional Medicaid rules require application of transfer rules and penalties.
SSI recipients are also subject to transfer penalties if they are applying for or receiving LTC.
Transfer rules and penalties DO NOT apply to applicants for or recipients of:
Medicaid with no LTSS
Noninstitutional LTSS (i.e., receiving LTSS under a noninstitutional Medicaid categorically needy or alternative benefits plan (ABP) program):
Medicaid personal care (MPC)
Community first choice (CFC)
Specifically exempted LTSS:
Roads to community living (RCL)
Does it matter when the transfer occurred?
The date of a transfer is the date the ownership of the asset changed. The WAC specifies what the date of transfer is depending on whether the asset is real or personal property. The agency reviews all transfers in the “look-back” period to determine whether adequate compensation was received for the transferred asset. The look-back period:
The agency reviews transfers made within the 60-month period before the month the client attained institutional status and applied for LTC.
The agency also reviews all transfers made on or after the date a client applied and began receiving LTC.
Any transfers made outside of the look-back period do not affect LTC Medicaid eligibility.
Transfers made by someone other than the client or their spouse
Uncompensated transfers made by the client or their spouse affect LTC Medicaid. Many authorized representatives are attorneys-in-fact (AIF) for clients. AIFs are granted powers under a power of attorney (POA) or durable power of attorney (DPOA) document. However, not all AIFs have authority to transfer a client’s assets. In order for an AIF to transfer a client’s assets, the POA document must specifically state the AIF has the authority to make transfers on behalf of the client. If the POA document does not contain language that gives the representative specific authority to transfer assets, then the case may need to be referred to Adult Protective Services (APS) for potential financial exploitation.
Transfers made by a guardian (so long as the guardian is given the power by the court) are treated just as if the client transferred the asset themselves. Guardians who have this power are generally referred to “guardians of the estate.”
Transfers made by others, by the direction of or on the behalf of the client, are also treated as if the client transferred the asset.
What is an asset?
An asset is:
A resource that the client or spouse owns
A source of income not generated by a resource, that the client or spouse owns.
Either a resource or source of income that the client or spouse does not own, but is entitled to. For example:
Waived pension income;
Waived right to receive an inheritance;
Not accepting or accessing injury settlements;
Diverting tort or other court payments; or
Refusing to take legal action to obtain court ordered payments.
What if the client transfers a stream of income to their spouse?
When a client transfers a resource to their spouse the income that is generated by that transferred resource becomes the separate income of the spouse – it is no longer the client’s income.
Example: If the client transfers ownership of a rental property to his or her spouse, then any income received from the rental property is now the spouse’s income.
If the client transfers a stream of income to his or her spouse, but there is no resource generating that income, then the income is still considered the client’s, even if it was transferred to the spouse or into a trust for the spouse. See WAC 182-513-1330(7).
Example: A client receives a pension of $500 and is able to change the payment so that the spouse receives the income. All $500 is still the client’s income, even though it is paid to the spouse.
Evaluate court orders that transfer a stream of income to a spouse on a case-by-case basis. You may need to obtain a legal opinion.
Referrals to APS
If you have a reasonable belief that a vulnerable adult (the client) has been financially exploited because of an asset transfer, make a referral to APS.
Exceptions to Transfer Penalties
All assets transferred for less than fair market value (FMV) were returned to the client or the client’s spouse
Once a penalty is established, all assets must be returned in order to reconsider the penalty. This includes multiple assets transferred to one person, or multiple assets transferred to multiple people. If all assets are not returned, the penalty is remains using all uncompensated value, including assets that were originally transferred but returned.
Likewise, if an application is made after some assets are returned a penalty is calculated for the “net” uncompensated value, based on the total assets transferred less any assets returned (or compensation received).
Example:Not all assets returned before penalty established: Harry enters a nursing home in September. In October Harry transfers $50,000 to his son. Later in October, the son gets legal advice from attorney to transfer what is left back to Harry. In November Harry’s son gives back $40,000. Harry uses $20,000 to pay off his current bills, he spends $6000 on a burial plan, and has enough left to pay privately until January. In February he is at $2,000 in resources and applies for Medicaid. The uncompensated transfer is $10,000 (original $50,000 less the $40,000 returned to the client to pay off his own bills equals $10,000).
Example:Not all assets returned after penalty established: Paul enters a nursing home in September. In October he transfers $50,000 to his son. In November Paul has $2,000 in his bank account and applies for Medicaid. The penalty is established based on the $50,000 transfer. A denial letter is sent in November. In December, Paul wants his period of ineligibility adjusted because the son decided to give $12,000 back. In this scenario, we will not adjust the penalty because the penalty period was already established. In order for the penalty not to apply, all the assets must be transferred back to Paul.
Uncompensated value in a month does not exceed the daily private nursing facility rate in that month
As long as the uncompensated value of all transfers in one month does not exceed the daily private nursing facility rate for that month, there is no penalty in that month.
If multiple transfers spanning several months are involved, then each month must be individually evaluated against this exception.
There was an intent to transfer the asset at full monetary value (FMV)
To meet this exception criteria the client has the burden to prove, by convincing evidence that there was an intent to transfer the asset at FMV and that the asset was transferred for less than FMV.
The transfer was not made to qualify for Medicaid, continue to qualify for Medicaid, or avoid estate recovery
The presumption is that the client or the spouse transferred the asset to qualify for Medicaid, continue to qualify, or avoid estate recovery. The client must rebut that presumption by providing convincing evidence.
In order to rebut the presumption, the client must present convincing evidence of what the specific purpose of the transfer was. Transferring for gifts, inheritance, avoiding probate, or preservation of an estate does not rebut the presumption that the transfer was to qualify for Medicaid or avoid estate recovery. Further, it is the purpose of the transfer to the recipient, not what the recipient will be using the transferred assets for.
Example: Mary transferred $50,000 to her daughter Sally in October 2015. Mary applied for Medicaid in April 2017. It is presumed Mary transferred the $50,000 to qualify for Medicaid. Mary provided evidence that she did not know about transfer penalties, the $50,000 was a gift, and that Mary had no plan to need Medicaid until an incident in April 2017. Mary did not prove the transfer was not to qualify for Medicaid, because the purpose of the transfer was a gift. Whether Mary knew about the rule or knew she needed Medicaid is not evidence of the purpose of the transfer.
If there is an uncompensated transfer and the effect of the transfer does not qualify the client for Medicaid, continue to qualify the client for Medicaid, or avoid estate recovery, then this exception is satisfied.
Example: Frank and Jane are married and Jane is applying for COPES. One month before application in May 2017, Frank and Jane gift $20,000 to their son. In June 2017 Frank and Jane have $30,000 in resources (if the transfer never happened, they would have $50,000 in resources). The effective resource standard ($2,000 + CSRA) for June 2017 was $56,726. Because Jane would have been resource eligible before the transfer, the transfer could not have been to qualify for Medicaid. Because Jane is married to Frank, it is extremely unlikely DSHS would recover the $20,000 had they not transferred it, therefore the transfer was not to avoid estate recovery. No penalty is this scenario.
The asset was transferred to the client’s disabled child
The child must meet Social Security disability criteria, the child can be any age. You may have to complete a disability determination referral in some cases. The child must be disabled on the date of the transfer.
The asset transferred was an excluded resource (except for the home)
Any resource excluded under chapter 182-513 WAC or chapter 182-515 WAC can be transferred without penalty.
Example: The car used for transportation, household goods, property essential to self-support, and excluded life insurance policies.
This exception does not apply to unavailable resources (as described in WAC 182-512-0250), only excluded resources.
The home was transferred to the client’s spouse.
The home was transferred to the client’s child who was under the age of 21 at the time of the transfer.
Note: No disability requirement exists for this rule.
The home was transferred to the client’s child who had lived in the home and provided care. All elements of this exception must be met:
The child lived in the client’s home for at least two years.
Note: If the transfer occurred before the child lived in the home for years, then the child was not living in the client’s home, the child was living in the child’s own home.
The child provided two years of verifiable care while living in the client’s home.
Note: These two years generally coincide with the two years living requirement, but it is a separate element. A child could live in the home, but not provide care; and the child could also provide care, but not live in the home. Both these elements together mean the child must be living in the client’s home and providing the care, each for at least two years, but only two years need to be concurrent.
The period of care was immediately before the client’s current period of institutional status.
Note: There is no objective test of “immediate,” only that the client must have either entered an institution (and the care by the child stopped), or the client began HCB waiver services immediately after the care was provided by the child. This element has nothing to do with the date of the transfer, and it is solely about the period of care compared to the date the client attained institutional status. Institutional status is described in detail in WAC 182-513-1320.
The care was not paid for by Medicaid
Example: This transfer penalty exception will not apply if the child is the client’s community first choice (CFC) individual provider for two years, and the client (for example) begins receiving nursing home services.
The care enabled the client to remain at home; and
The client provided physician’s documentation that the in-home care was necessary to prevent the client’s current period of institutional status.
Note: For the most part, the timing of the transfer of the home is irrelevant. It can happen anytime after all elements above are met. The only real issue of the timing of the transfer is that it cannot happen until both two-year requirements are met and the client has attained institutional status. This means the home can be transferred several years after the care stopped, as long as all requirements were met.
The home was transferred to the client’s sibling or the clients spouse’s sibling who had an equity interest in the home. The sibling must have had an equity interest in the home for at least one year before the client attained institutional status.
The transfer was to the family for providing care
Some transfers are made in consideration of care provided to a client by a family member. Sometimes family members have entered into some sort of contract with the client for this compensation. Frequently these contracts are called “lifetime care contracts.” However, not all transfers in exchange for care will have been made through a lifetime care contract.
Only transfers to family in consideration of care that meet certain requirements will not incur a penalty. All elements of the exceptions must be met, and if not, all transfers to family in consideration of care will be determined to be uncompensated. The elements of the exception are:
The transfer is in exchange for care services the family member provided to the client.
The client had a documented need for the care services provided by the family member. The following list contains some acceptable means of verifying the need:
Doctor’s statement; a statement from some other medical care provider;
A comprehensive assessment completed by DSHS or AAA staff; however, this must have been completed at the time the care contract was completed; or
Any other credible means of verifying the need for services.
The care services provided by the family member are allowed under the Medicaid state plan or the department’s home and community based waiver services. Certain services are not covered by Medicaid in an at-home setting, like 24 hours / 7 day-a-week personal care.
The care services provided by the family member do not duplicate those that another party is being paid to provide.
The FMV of the asset transferred is comparable to the FMV of the care services provided.
The time for which care services are claimed is reasonable based on the kind of services provided.
The assets were transferred as the care services were performed, or with no more time delay than one calendar month between the provision of the service and the transfer.
The transfer was to another party or a trust for the sole benefit of the spouse, disabled child, or other disable person under 65
Sole benefit of the spouse: although the transfer may be excluded from being penalized, this does not mean that the assets are no longer resources of the client or their spouse. See manual material regarding Trusts.
The penalty period
Length of the penalty
The length of the penalty depends on when the transfer occurred, because it is based on the statewide average daily private cost for nursing facilities (“private rate”). This income standard typically changes every year in October.
Use the private rate as of the date of the transfer or the date of application, whichever is later.
For single transfers, or multiple transfers where the same private rate is used, add together the total uncompensated value and divide by the private rate. The length of the penalty is rounded down to the nearest whole day.
For multiple transfers that span multiple private rate standards, independently add together total uncompensated value applicable to each private rate standard, and divide each by the private rate. Add together the calculated days and round down to the nearest whole day.
Example: Sheila transferred $25,000 in July 2016 and $30,000 in November 2016 to qualify for Medicaid. She applied for Medicaid in December 2016. The penalty period will be calculated using the October 2016 private rate, because the application date is later than the transfer dates.
Example: Hank has been on Medicaid for several years. The financial worker learned that Hank received an inheritance, but did not report the change in resources. Hank gifted $50,000 in July 2016 and November 2016 to remain eligible for Medicaid. The penalty would be calculated by dividing $50,000 by the October 2015 private rate and dividing the second $50,000 by the October 2016 private rate. The results would be added together and rounded down to the nearest whole day.
Penalty start date
Applicants – an applicant’s penalty period would begin on the date the client would be otherwise eligible for LTC services, but for the transfer, based on an approved application for LTC services or the first day after any previous period of ineligibility has ended.
Example: Gary applied for a nursing home in May 2016 and asked for retroactive coverage. He has been in the nursing home since 2014. Gary is eligible in all other respects, except for a transfer back to February 1, 2016. The penalty period would start February 1, 2016.
Recipients – a recipient’s penalty period begins the first of the month following ten-day advance notice of the period of ineligibility.
Example: Sarah is on LTC Medicaid and informs her financial worker on 9/26/16 that she transferred her home to her child to avoid the state taking it when she passes away. The penalty would begin 11/1/2016, because that ensures Sarah has at least 10-day advance notice prior to the adverse action of termination.
Transferring a stream of income not generated by a resource
Total uncompensated value for a transferred income stream is calculated by determining a reasonable expected amount the income stream would have paid to the client and reducing that by any consideration given for the income stream.
Example: Jake transferred an annuity income stream to his sister in order to qualify for Medicaid. On the date of transfer there were 50 monthly payments of $500 remaining on the annuity. Jake’s life expectancy per the SSA tables is 11 years. Because the annuity pays out before Jake’s life expectancy, we calculate the uncompensated value by multiplying 50 payments by $500 = $25,000.
Splitting a penalty period between spouses
A penalty period can be split evenly between spouses if both spouses would have been approved, but for the transfer, for LTC.
If one spouse is no longer subject to a penalty (in an unfortunate example – one spouse passes away), any remaining penalty is applied to the other spouse.
There are potential civil penalties for a person who receives a client’s assets without adequate consideration. See RCW 74.39A.160.
A client may be able to prove hardship after LTC is denied for a transfer penalty. Transfer denial/termination letters include information about how to apply for a hardship waiver. See WAC 182-513-1367.
Verification of any assets transfers within the look-back period is an eligibility requirement. Workers should request verification of any claimed assets transfers and request verification to complete the review of the look-back period for asset transfers.
If the client claims an exception to a transfer penalty, request verification of the elements of the exception. If you believe the transfer penalty should not be imposed, request verification of the elements of the exception rule.
Some questions to ask yourself when reviewing verifications:
What asset was transferred?
Was it transferred in the look-back period?
What was the value of the asset?
Was anything received in return for the asset?
Presume the transfer was to qualify for Medicaid, continue to qualify for Medicaid, or avoid estate recovery. Did the client claim any other purpose for the transfer? Did the client provide any evidence as to that purpose? Is that evidence convincing?
Are there any potential exceptions to applying a penalty? What verification do we have that satisfies the exception criteria?
When a person is denied or terminated from LTC due to a transfer penalty, we must determine whether the client is eligible for another Medicaid program that does not have asset transfer rules. This includes:
SSI recipients – they should continue categorically needy (CN) Medicaid
Residential clients – determine CN or medically needy (MN) in an alternative living facility. See WAC 182-513-1205.
Comment: Judgments this case: 1 Signed by: COMMISSIONER ROBERT SAUERLENDER 2011-07-27 JD JUDGMENT IN FAVOR OF SARA R MARTIN AND/OR HER ASSIGNEE AGAINST CODY STERLING DOBBS TOTAL JUDGMENT AMOUNT 150.00. PRINCIPAL JUDGMENT AMOUNT (BACK SUPPORT) FOR THE PERIOD FROM 4/1/11 THRU 7/31/11 150.00. 2014-03-14 STFJG SATISFACTION OF JUDGMENT
When Kelly Vomacka first read that the Washington Supreme Court had struck down the law criminalizing drug possession in the state, she was in disbelief. The Blake decision, named for the woman at its center, was not at all on Vomacka’s radar. While she was peripherally aware of the case, she would not have guessed that this is where it would lead.
In this, she was not alone — attorneys, advocates, lawmakers, even the lawyer who argued before the nine justices on Shannon Blake’s behalf, were all surprised that the court would take the case of a woman with drugs in her jeans pocket to such lengths.
“This just came out of the sky one day,” said Vomacka, a defense attorney based in Tukwila. Her reaction? “Stunned.”
For advocates of drug policy reform and those in the world of criminal defense, the ruling “was a much-needed nail in the coffin on the war on drugs,” said Ali Hohman, director of legal services at the Washington Defender Association. Meanwhile, many prosecutors, law enforcement officials and lawmakers are nervous about its implications.Next: Tensions build as Seattle seeks to resume parking enforcement
Regardless, all agree that the Blake decision is and will be viewed as a landmark and one whose chain reaction extends well beyond those charged with simple drug possession. Inmates held on multiple charges may need resentencing; those rearrested for parole violations may have their records cleared; fees and fines may need refunding; immigrants facing deportation for drug felonies may be allowed to stay — the list goes on. On Thursday, two organizations, the Public Defender Association and the Civil Survival Project, filed a lawsuit demanding repayment of past legal financial obligations on behalf of possibly thousands of people convicted under the now-voided law.
“We think this is a $100 million issue,” said Juliana Roe, policy director of the Washington State Association of Counties.
Drug charges, as one attorney put it, are central to the DNA of the country’s criminal justice system — adding months to sentences, often leading to downstream consequences. And now, that DNA must be extracted in Washington. What’s more, even if lawmakers were to pass a new law tomorrow, a pillar of the legal system is that new laws cannot criminalize past behavior — which means there’s no going back from Blake.
“This case was cataclysmic,” said Hohman. From here onward, “we’re going to be saying before Blake and after Blake.”
At the core of the Blake decision is the question of the state’s power to police. When it came to drug possession, Washington was the only state remaining in which prosecutors did not need to prove intent.
This situation came to a head in 2016, when Spokane police served a search warrant seeking evidence of stolen vehicles. Among those they arrested was Shannon Blake. At the jail, an officer found a bag of methamphetamines in her back pocket. Blake claimed to the officers and later in court that the jeans were her friend’s, and she did not know there were drugs in the pocket.
Unlike most parts of the law, the burden of proof fell not on the prosecution, but on Blake; if the drugs were indeed not Blake’s, it was her job to prove it.
Her lawyer, Richard Lechich, told Crosscut that this gave enormous discretion to police and prosecutors.
By way of example, he pointed to a recent case in Seattle in which a woman purchased a crochet kit from a thrift store, only to find a kilo of cocaine tucked inside. The story became a quirky one and the woman was not penalized — but Lechich said under Washington’s law, she could have been liable for those drugs and gone to jail.
“That the Seattle police decided not to arrest her and the King County prosecutor decided not to prosecute her was just by good grace,” he said.
When Blake’s case made its way to the Washington Supreme Court, Lechich’s primary argument was that Washington’s drug possession law actually did imply that prosecutors must prove intent. By this argument, a new precedent could have been set and Blake cleared of her charges, but the law itself would likely have been left to stand.
But as his secondary argument, Lechich argued that, if intent was not implied, then the whole law ought to be found unconstitutional as a violation of the tenet that people are innocent until proven guilty.
In a narrow 5-4 decision, the justices agreed with Lechich’s second argument — surprising even Lechich. They ultimately concluded that lawmakers had been aware of the hole in the statute for many years, but decided not to change it. The whole law, therefore, was unconstitutional, meaning every case that involved drug possession must be reexamined.
“The consequences do seem very large just because there are so many convictions for possession of a controlled substance,” said Lechich.
The consequences of the ruling were immediate. Within hours, the Washington Association of Sheriffs & Police Chiefs put out a statement that law enforcement should stop taking any actions related to simple drug possession. Pending cases ought to be dismissed, they said, and warrants for people on simple drug possession should be voided. The Seattle Police Department said its officers would no longer confiscate drugs or arrest anyone for simple possession.
“It is a very, very significant decision,” said Steve Strachan, executive director of sheriffs and police chiefs association.
Douglas Wagoner, spokesperson for the King County prosecuting attorney, described the impacts as “sweeping” with “instant” and “retroactive impacts.” In 2020, the prosecutor’s office filed 580 felony drug charges.
Nacim Bouchtia, a defense attorney in Seattle, said he had at least one client whose charges were dropped that night. A listserv of defense attorneys across the state lit up with questions about steps forward.
Simmie Baer, senior attorney at the Cowlitz County Office of Public Defense, said she had a client who was a war veteran struggling with PTSD and injuries. He’s addicted to heroin and racked up 13 possession charges — but nothing else. Overnight, she said, all of those charges were wiped away.
“He won’t be facing prison time on any new charges because there won’t be any new charges,” she said.
In many ways, handling the cases that involve only drug possession is the easy part. Marijuana is legal in Washington and some prosecutors have scaled back on charging simple possession cases.
But a huge number of cases in the state’s criminal justice system include a drug possession charge, plus others. Felony sentencing in the state is a point system and drug possession adds points — and time.
“If the cases are just void, in theory there’s nothing to be done about those cases,” said Vomacka. But “there’s a lot of people who need to be resentenced and that’s difficult.”
Working through all of those resentencings will be a huge task at a time when courts are already severely backlogged. “Practically speaking, this is going to have enormous workload and cost consequences at a time when the King County court system is experiencing a historic backlog,” mostly because of the pandemic, said Wagoner. Hohman of the Washington Defender Association suggested that hearing all these cases will require creativity — perhaps drop-in clinics or other ways to bring the court directly to people.
The impacts cascade from there. Bouchtia, the Seattle defense attorney, pointed out that many people have been arrested for felony possession of a firearm — in which their original felony was drug possession. Others have been rearrested for parole violation or failing to appear after being charged with a drug felony. Those cases may also need reviewing.
Additionally, counties have received millions in legal financial obligations from people with drug charges. Roe of the Washington State Association of Counties said that, over the past 20 years, the state and counties have likely collected between $24 million and $47 million that may need to be paid back.
Because the court found the whole statute unconstitutional, replacing it would mean passing an entirely new law. That new law could not apply retroactively, however, which means the Blake decision will have enormous impacts regardless of what the Legislature does.
State Sen. Mark Mullet, D-Issaquah, introduced a bill that reinstates the same language, but adds the word “knowingly.” Mullet said he generally supports finding new ways to get people out of jail and into treatment, but said, “I’m drawing the line” at legalizing all possession without also scaling up alternatives.
“I was just kind of shocked,” he said of the decision. “It seemed like a huge overreach by the Supreme Court. They knew what they were doing when they struck this section of the statue…. We cannot leave town on April 25 without addressing the Blake decision.”
Strachan agrees. He said law enforcement supports diverting people from jail, but is skeptical that the infrastructure currently exists to offer treatment alternatives. He added that he still believes that the system needs the leverage that comes with criminalization to push people toward treatment.
“There needs to be an element of ‘you need to seek treatment and here’s why,’” he said.
But Mullet’s bill has so far progressed only slowly; now that the Legislature has passed its cutoff date for policy legislation, it would need a two-thirds vote to revive it.
Meanwhile, advocates oppose a return to normal.
“I think that effort is a huge step backward,” said Anita Khandelwal, director of the King County Department of Public Defense. She said drug criminalization has disproportionately hurt people of color and views the court ruling as a chance to move away from the war on drugs. “Why would we spend the time passing that law again instead of having the much more urgent conversation about how do we build more housing and how do we get more treatment on demand?” she said.
It will likely take years to sort out all of the implications of the ruling. How it is applied and interpreted will almost certainly depend on the prosecutor in a given county.
In King County, prosecutors and defense attorneys so far have not come to an agreement on all the impacts of the ruling. While they agree that new cases and pending cases should be dropped, the county Prosecuting Attorney’s Office has declined to hold resentencing hearings, vacate past convictions or agree to refund legal financial obligations — all of which the Department of Public Defense has called for.
Part of the hesitancy is that many people expect attorneys from Spokane to file a motion to reconsider. It would be rare for the Supreme Court to grant the reconsideration, but not all decisions have such immediate and far-reaching consequences. Attorneys with the Spokane County Prosecuting Attorney’s Office did not respond to multiple requests for comment.
It’s unclear exactly how many people the new ruling will affect; legal organizations and government agencies are still counting.
Hohman of the Washington Defender Association said one colleague described the process of untangling the Blake decision as “an onion and we just have to go layer at a time.”
For her part, Hohman had her own metaphor: “We’re just riding the crest of the wave.”
From opposite sides of the culture, parallel campaigns for legal recognition may soon make multiple-partner marriages as unremarkable as same-sex marriages.
Fifteen years ago, when Rich Austin was in his early forties, he and his wife watched the HBO show “Big Love,” about a polygamous family of fundamentalist Mormons in Utah. “I kind of got hooked on it,” Rich told me. “I had a string of broken relationships, so I was joking, ‘Well, maybe if I was a polygamist, I wouldn’t have that problem.’ ” He had a daughter, from a fling a few years earlier, whom the couple were raising together. They were swingers, but Rich wanted more than unattached sex, and broached the subject of polygamy with his wife. The marriage soon broke up.
In 2008, Rich met Angela Hinkley, and soon told her how much he liked the show. “I felt I had to have Angela on board from the start,” he said. They got engaged, and, around the time Angela became pregnant, they started looking for another woman to join them. Online, they met a nineteen-year-old, Brandy Goldie, and after months of chatting she visited them at their home, near Milwaukee. Then she stopped communicating; her mother temporarily thwarted her plans to enter a polygamous union, but, six months later, Brandy called Rich and said, “If I asked to come back, would you ever take me back?” He said, “In a heartbeat.”
When Brandy became pregnant, she realized that the arrangement was now permanent, and was scared. She became emotionally distant, and Rich started to realize what he had taken on. He was working odd jobs, Angela worked part time, and Brandy was looking for a job. A Navy veteran, Rich drew disability payments, but for a while the whole family was subsisting on about twenty-eight thousand dollars a year.
Later that year, Rich and Angela married. Brandy was a bridesmaid. The next year, in an online forum, they saw a post from a woman in her early thirties named Julie Halcomb that said, “I’m a single mom, I’ve got a two-year-old daughter, and I’d like to learn more.” Rich wrote, “If you want to know more, ask my wives.” Angela had opposed adding a third wife, but when she got off her first call with Julie she said, “O.K., when is she moving in?” Julie visited, mostly to make sure that the kids would get along, and joined the household permanently a week later.
Before getting married, Rich and Angela converted to Mormonism. Julie, who also began the conversion process, recalled, “We were talking about how we’re going to set the family up, and the early Mormons already had a road map.” But the mainstream Church of Jesus Christ of Latter-day Saints has forbidden polygamy since 1904, and the practice endures only among originalist communities, including the Fundamentalist Church of Jesus Christ of Latter-day Saints (F.L.D.S.). So Rich began telling people that Brandy was a cousin who had become pregnant by accident. “I didn’t like having to deny who I was, what type of relationship I was in,” Brandy told me. When Julie started writing a blog about their life, Rich was excommunicated.
Their living arrangements attracted other unwelcome attention. Neighbors called the police, and Child Protective Services interviewed the children. Since there was only one marriage certificate, the police couldn’t file bigamy charges. “They said, ‘We don’t like it, but there’s nothing we can do,’ ” Julie recalled. “But we had them at our door constantly. One of the kids would have an accident at school—we’d have them there again. They were constantly trying to find signs of abuse.” After six years, the family moved to Medford, a small town in northern Wisconsin, where they could afford a house that accommodated them all and where social services seemed to accept their setup.
At the family’s largest, Rich had four wives, but when I met him, a couple of years ago, he and Angela were divorcing, and another woman, April, had come and gone. Rich, Brandy, and Julie were living with their kids—six, including Rich’s and Julie’s from earlier relationships—and saw Angela’s two every other weekend. The children, who now number seven, ranging in age from one to twenty, view one another as full siblings. “We almost need a chart to figure out which kid’s which some days,” Rich said. Julie laughed. “We already told him that, if he wants to add another wife, Brandy and I have to find her,” she said. “It’s not just going to be someone who Mr. Eternal Hope thinks might work. We’re the ones that have to live with her all the time.”
The Austins would like one day to enjoy the legal benefits that married couples take for granted. Brandy and Julie take heart from the success of the gay-marriage movement. “I’ve got a wedding invitation on the way from a friend who’s transitioning from female to male,” Julie said. “I’ve got classmates that came out almost twenty years ago. They’ve been lucky enough to get married. I wish people would be as accepting with us as we try to be of everyone else.”
As many as sixty thousand people in the United States practice polygamy, including Hmong Americans, Muslims of various ethnicities, and members of the Pan-African Ausar Auset Society. But polygamists face innumerable legal obstacles, affecting such matters as inheritance, hospital visits, and parentage rights. If wives apply for benefits as single parents, they are lying, and may be committing welfare fraud; but if they file joint tax returns they are breaking the law. Members of Julie’s family have made it clear that, if she dies, they will demand custody of the daughter from her first marriage. “That would be very sad for her,” Julie said. “She’s lived here since she was two.”
Polygamists have become more vocal about achieving legal rights since the legalization of same-sex marriage nationwide, in 2015. So has another group: polyamorists, whose lobbying runs in parallel but with scant overlap. Unlike polygamy, which is usually religiously motivated and typically involves a man with multiple wives who do not have an erotic relationship to one another, polyamory tends to be based on utopian ideas of sexual liberty and may involve a broad range of configurations. In the end, however, the real difference is what term fits people’s paradigms; as with much of identity politics, affiliations are self-determined. In the popular imagination, polygamists are presumed to be right-wing misogynists and polyamorists to be decadent left-wingers, but the two groups share goals and, often, ways of life. In the years I’ve spent talking to members of both communities, I have found that it is usually the polygamists who are more cognizant of common cause. “But people can’t seem to unite under one platform,” Rich said.
In 2015, when the Supreme Court’s decision in Obergefell v. Hodges established same-sex marriage as a constitutional right, Chief Justice John Roberts wrote a dissent arguing that, if a system denying marriage to gay and lesbian couples represented an assault on their constitutional rights, existing marriage restrictions must similarly “disrespect and subordinate people who find fulfillment in polyamorous relationships.” Roberts continued, “Although the majority randomly inserts the adjective ‘two’ in various places, it offers no reason at all why the two-person element of the core definition of marriage may be preserved while the man-woman element may not.” He went on to emphasize that the prevalence of polygamy throughout history made it less of a radical leap than same-sex marriage.
Many gay activists, such as Evan Wolfson, who founded Freedom to Marry, dismiss comparisons between poly marriage and same-sex marriage as a “scare tactic.” But legal scholars take the argument seriously. In an anti-poly paper in the University of Pennsylvania Journal of Constitutional Law, John O. Hayward wrote, “Now that the U.S. Supreme Court has legalized same-sex marriage nationwide, the only remaining marital frontier—at least for the Judeo-Christian nations of the West—is polygamy.” Another law professor, Jack B. Harrison, wrote that state bans against plural marriage were sure to be challenged, and that anyone who wanted to maintain them would have to “develop a rationale for them, albeit post hoc, that is not rooted in majoritarian morality and animus.”
This is no longer merely a theoretical matter. In February, 2020, the Utah legislature passed a so-called Bigamy Bill, decriminalizing the offense by downgrading it from a felony to a misdemeanor. In June, Somerville, Massachusetts, passed an ordinance allowing groups of three or more people who “consider themselves to be a family” to be recognized as domestic partners. Last week, the neighboring town of Cambridge followed suit, passing a broader ordinance recognizing multi-partner relationships. The law has proceeded even more rapidly in recognizing that it is possible for a child to have more than two legal parents. In 2017, the Uniform Law Commission, an association that enables states to harmonize their laws, drafted a new Uniform Parentage Act, one provision of which facilitates multiple-parent recognition. Versions of the provision have passed in California, Washington, Maine, Vermont, and Delaware, and it is under consideration in several other states. Courts in New Jersey, Pennsylvania, Delaware, Texas, Arizona, and Louisiana have also supported the idea of third parents. American conservatism has long mourned the proliferation of single parents, but, if two parents are better than one, why are three parents worse?
Douglas NeJaime, a professor at Yale Law School who was involved in the drafting of the new parentage act, told me that the impetus for it was that many state laws defining family in binary, opposite-sex terms would be invalidated by Obergefell. “If parentage doesn’t turn on gender or biology but on the parent-child bond, then laws that have limited it by number no longer seem logical,” he said. The trend toward multiple-parent recognition is not restricted to blue states. “Those of us who are trying to push the legislation understand the L.G.B.T.-family issue as part of a broader universe in which people’s family arrangements should be respected,” NeJaime said. “As things stand now, once you’re a parent you get everything, and if you’re a nonparent you get practically nothing. The folks on the committee understood the importance of protecting parental relationships, especially when they were not biologically related to the child. So it deliberately applies to unmarried people who aren’t L.G.B.T.”
Much of the drafting of the law was done by Courtney Joslin, a law professor at U.C. Davis who was previously a litigator at the National Center for Lesbian Rights. She told me that its language reflects “case law in favor of allowing that a particular child has more than two legal parents. It wasn’t creating a trend—it was reflecting an emerging trend.” She went on, “If, for example, three people intend to have a child together and then parent together for an extended period of time, the court could find that all three should be recognized as parents.” If the court is adjudicating multiple parents, how can it deny multiple-relationship recognition? How can non-recognition not be held to harm children? “The law should allow for the recognition of actual functional adult familial relationships, even if the parties have not formalized those relationships,” Joslin said.
Three parents are less shocking than three partners—when President Obama “evolved” on gay marriage, he cited the injustice encountered by his daughters’ friends who had gay parents—but one flows from the other, and marriage rights often further the inclusion they aim to reflect. For all the hate mail and burning crosses that Mildred and Richard Loving had to endure, the legalization of interracial marriage did much to moderate American racism. Gay marriage has increased acceptance of same-sex couples.
Queer theorists have complained that Obergefell valorizes the family values associated with monogamous marriage and thereby demeans people who resist those values. But others see it as the first step toward more radical change. “Obergefell is a veritable encomium for marriage as both a central human right and a fundamental constitutional right,” Joseph J. Fischel, an associate professor of women’s, gender, and sexuality studies at Yale, has written. “We, as an LGBT movement, should be ethically committed to endorsing poly relations and other experiments in intimacy.” He argues for “relational autonomy” without regard for “gender, numerosity, or affective attachment.”
The campaigns of both polygamists and polyamorists to have their unions recognized point to the larger questions that swarm around marriage battles: what are the government’s interests in marriage and family, and why does a bureaucratic system sustain such a relentless focus on who has sexual relationships with whom? Surveys in the past decade have consistently found that four to five per cent of American adults—more than ten million people—already practice some form of consensual nonmonogamy, and the true number, given people’s reticence about stigmatized behaviors, is almost certainly higher.
Consensual nonmonogamy is hardly a new invention. Jewish polygamy peppers the Old Testament, even if the marriages tend not to be portrayed in positive terms; the Hebrew word tzarah means both “second wife” and “trouble.” Today, polygyny—the subset of polygamy that involves one man and multiple women—enjoys legal status or general acceptance in more than seventy countries. (Its rarer obverse, polyandry, persists in certain communities in Nepal, Tibet, India, and Sri Lanka.) In the West, champions of polyamory have included Mary Wollstonecraft, George Sand, Havelock Ellis, and Bertrand Russell. Still, a particular ethos, rooted in Christian, European values, has created a presumption that monogamy is superior to all other structures. Immanuel Kant saw marriage as emblematic of Enlightenment ideals, claiming that it was egalitarian, because spouses assigned ownership of their sexual organs to each other.
The Oxford English Dictionary and Merriam-Webster’s Collegiate Dictionary added the word “polyamory” as recently as 2006, and the well-known relationship therapist Esther Perel observes that traditional monogamy is on the wane and perhaps increasingly untenable. “Many social norms don’t fit human nature,” she told me. “For most of history, monogamy was one person for life. At this point, monogamy is one person at a time. The first freedom was that we can actually, finally have sex with other people before we are together. Now we want to have that freedom while we are together. The conversation about consensual nonmonogamy today is the conversation about virginity sixty years ago. Or the conversation about divorce twenty years before that.”
Andy Izenson, Roo Khan, Cal T., and Aida Manduley envisaged creating a utopian place where queer, trans, and polyamorous people could feel safe and welcome. For years, they had told one another stories about the property they would build. At the end of 2017, when Andy and Roo lost their lease, in Brooklyn, the time had come; Cal, who had been living in New Hampshire, was ready to move in, and Aida, a psychotherapist in Boston, planned to relocate as soon as possible. They found a house with fourteen acres and some outbuildings in Ulster Park, on the Hudson. They called their ménage the Rêve.
When I visited, last year, everything seemed to be a work in progress. Unfinished projects around the house gave a feeling of relaxed chaos. Andy, wearing a loose white dress, offered me drinks and snacks. Andy is Jewish; Aida is Puerto Rican; Roo is mixed race and Muslim; Cal is Black and mixed race. Their ethnic and religious backgrounds have prepared them for the marginalization they have experienced as polyamorists.
Like the others, Andy goes by the pronoun “they” and described themself as “gender ambivalent.” A lawyer in their early thirties, they spoke in long, hyperactive paragraphs, their eyes wide with passionate focus. Their pronoun preference, however, is mild. “If you’re saying a sentence about me, you can use whatever pronoun you want,” they said. “They’re all manifestations of the incomplete power of language to translate human experience into sound. We’re all genderqueer. ‘Polyamorous’ is a close enough description of my practices in the same way as ‘trans-masculine’ is a close enough description of my gender.”
Roo said, “I like the word ‘caucus.’ We caucus with polyamorists, you caucus with trans-masculine folk, I caucus with trans-feminine folk. I’m independent from that, but I’m on your side.” There are various romantic configurations among the four partners, but only Andy is in a romantic relationship with all three of the others. In addition, they all have “comets”—lovers from outside the group who blaze through and then are gone. “It’s a more stable structure with more people,” Andy said.
The members of the Rêve have thought deeply about what many people characterize as divided love. Andy explained, “When you light a candle with another candle, your first candle is not less on fire.” (Shelley, in 1821, wrote much the same: “True love has this, different from gold and clay, / That to divide is not to take away.”) Andy said that the idea was not “a sexy orgy bonanza” but a conscious rejection of two things: first, “dividing relationships into two categories—one category being people with whom you have sex and the other category being people with whom you don’t have sex,” and, second, “saying that those categories are defined by some deeply operative distinction that changes the fundamental nature of a relationship.” Polyamory, Andy acknowledged, is hard. “If it were easy, everyone would be doing it,” they added ruefully. The key was to “deal with the things that are abundant from a place of abundance and with the things that are actually scarce from a place of compassion and generosity.”
The four of them saw the Rêve as a home to a core of residents and as a sanctuary for a wider group. The house has room for nine—“more if people are willing to cuddle,” Andy added. At present, some fifteen occupants can arrive at the house at any time and stay as long as they like. “As we build more structures, as we have more beds, we can have more people living here full time,” they went on. “We want to be able to say, This is what we’re doing for the rest of our lives, so, if you aren’t so stressed about bathroom proximity but you want to fuck a little further off into the woods, this is where you can do it.”
In August, 2019, the Rêve held a commitment ceremony, which they called a HearthWarming. Some forty people stayed at the property, mostly in tents. Seventy more came for the day. As part of the service, they pledged themselves to the land as well as to one another. They invited their parents and all the queer people they regard as kinfolk and declared themselves an “intentional family.” They placed the commitments they were making to one another in a hole they had dug, invited everyone else to put commitments in, too, and then filled in the hole and planted a tree. There was no officiant, but there was a chuppah. Roo’s father is Pakistani, and members of his family wore traditional Pakistani wedding outfits and henna.
Andy’s mother was initially dismayed by the idea of the marriage. “I said, ‘I know I’m not really your daughter in the way that you wanted to have a daughter,’ ” Andy recalled. “ ‘And I’m not getting married in the way that you envisioned me getting married. But the kind of kid I am is having the kind of commitment ceremony I’m having, and if that’s what you get do you want it?’ And it turns out she kind of did. She helped me pick out a dress.”
Andy grew up in New Hampshire. “It’s not a place I would recommend growing up if you’re trans, for sure,” they said. “I learned when I was young that there was something very wrong with me that nobody would ever understand.” At Skidmore, they studied sociolinguistics. They had their first polyamorous relationship there, in a lesbian triad. “I started meeting more queer and trans people and realizing that it’s not that there’s something broken and weird about me.”
They went to law school in New York City. “I started encountering the idea that the state tells you about how the world works, what a family looks like, what gender is supposed to be,” they said. “As I was studying, I started to learn that there are discrepancies between the state’s stories and reality.”
That led Andy to think about personal choices. “I had had it in my head, Eventually, I’m going to have to do the grownup thing and find the spouse that I can tolerate and produce children. It’s going to suck. The first thing you realize might be, Oh, I don’t actually have to be a girl. Or, I don’t have to be in a relationship with the one person who provides the completion of my Platonic soul for the rest of my life. Whichever linchpin gets pulled out first, it all comes falling down. And once it’s all fallen down you can say, O.K., I’ve got all these pieces and now I can build something.” Andy gestured at the house and their spouses. “And this is what we’ve built,” they said.
None of them is currently planning to have a child biologically. “But we have discovered that we like having kids around the house,” Andy said.
“For discrete amounts of time,” Roo added.
Andy said, “We want our friends’ kids to know that when they’re a grouchy teen-ager they can go, ‘Screw you, Mom, I’m going to the Rêve,’ and everyone will know that they’re safe here.”
Cal said, “The thing that I wanted was a family. And I didn’t want to get married or have children. And it turns out you can still have a family, even if you’re not getting married and having children.”
The group worked with a financial professional who specializes in nontraditional-family planning to set up the house as a joint tenancy with rights of survivorship, so that if one of them dies their interest reverts to the others. The document also includes prenup-style arrangements for what will happen if any of them decides to leave.
For a long time, Cal worked for a solar company that offers health benefits for one domestic partner, and they put Andy on their insurance because Andy needed it the most. Roo co-owns a small tech worker co-op and gets less generous insurance through that. “It would be convenient if we were all on the same health insurance and didn’t have to find one covered doctor for Roo and one covered doctor for the two of us,” Andy said. “Society has these two categories: families that get recognition from the state and families that don’t. The families that get recognition are the married, monogamous ones, and the ones that don’t are everybody else.”
The question is: what does marriage mean? “I remember reading the list of eleven hundred and sixty-three federal benefits that marriage gave, and one of them that just stuck out to me was ‘family discounts at national parks,’ ” Roo said. “If the federal government says you’re a family, you get the family discount, but we wouldn’t. It’s fucking everywhere.”
Andy talked about a watershed moment for gay rights, in 1989—the case of Braschi v. Stahl. Miguel Braschi was being evicted from the rent-controlled apartment he and his partner shared, after the partner died, of AIDS. The landlord contended that the lease was transferrable only to family, and that Braschi wasn’t family. Braschi sued. The judge issued a stunningly progressive ruling saying that family should be based on the reality of daily life—these two men lived together, shared finances, took care of each other—and not on “fictitious legal distinctions,” such as marriage certificates. In Andy’s view, the subsequent campaign for gay marriage represented a missed opportunity. “In 1989, he said that a marriage certificate was a fictitious legal distinction,” Andy said with wonder. “The gay-rights movement took that and said, ‘Actually, no, we’re just going to throw that out and try and get married. That seems like a better plan.’ Imagine if we had taken that idea—that legal protections for family should be granted based on the reality of daily family life and interdependence and networks of mutual care rather than on fictitious legal distinctions—and run with it.”
No family in America has done more for the image and legal standing of polygamists than the Dargers: Joe, his three wives—Alina, Vicki, and Valerie—and their twenty-five children, who live in and around Herriman, Utah. In 2011, they published a book, “Love Times Three,” about their polygamous life, even though their marriage was a felony at the time, and they tirelessly worked to persuade other polygamous families to come out. Utah’s decision to decriminalize polygamy was in large measure the result of a lobbying campaign that the Dargers had pursued for two decades.
Their house is in a relatively new subdivision, with wide views of nearby mountains. Joe, who works in construction, has built additional houses on the property for two of his adult children. “Anybody else, they’d say it’s a nice estate,” he said, when he showed me around, in June. “If you’re polygamous, it’s a compound. We’ve taken lessons from the L.G.B.T.Q. community, being very deliberate about language, because how you let people define you has an impact.”
I had previously met Joe, on Zoom, and he had seemed intimidating, with an unkempt beard and a forbidding manner, and he had stuck to facts that I was sure he had recited a hundred times before. But, when we sat together on his back porch, I found him clean-shaven, relaxed, and forthcoming, and his wives greeted me brightly. As we talked there for the better part of a day, children, grandchildren, wives, and others whose identities were never completely clear to me came and went.
Joe and his wives come from fundamentalist Mormon families and have known one another from childhood. Some of their grandparents were jailed together for polygamy after the 1953 Short Creek raid, in which state troops arrested an entire community of four hundred people, including more than two hundred and fifty children. Joe’s grandfather, who had aliases ready and hiding places mapped out, spent several years on the run. Vicki and Valerie’s grandfather, however, said, “If the authorities come, we’ll be home. Have the children be neat and comely.” He spent seven years in jail. Like many children of polygamists, the Dargers grew up in an atmosphere of secrecy, quickly learning not to tell their schoolmates about their families.
Joe married his first two wives—Alina and Vicki—on the same day, in 1990. He was twenty, and they were twenty and nineteen, respectively. Alina and Vicki gave birth to their first sons seven months apart, and each nursed both babies. Ten years later, Joe married Vicki’s twin sister, Valerie, after she left another plural marriage. She brought five children with her and had four more with Joe, who has seven children with Alina and nine with Vicki. So far, they have nineteen grandchildren, and Joe’s youngest children are best friends with his oldest grandchildren.
Alina founded a nonprofit, Cherish Families, which provides support to people both living in and leaving polygamy. Valerie works as an advocate there. For a time, Vicki homeschooled many of their children. They all talked about the difficulties of polygamous life. At one point, Vicki suffered severe postpartum depression and was consumed with jealousy toward the other women. “I hated everyone,” she said. “I didn’t know if I was going to stay here.” Alina recalled fearing that the family might break apart. “All of us have had our turn, whatever we were going through,” she said. Effectively, they were married not only to Joe but also to one another. Valerie said, “We share the kitchen and laundry—and we love each other and we get jealous. I have to manage Alina’s and my relationship, Vicki’s and my relationship, Vicki and Alina’s relationship, all of our relationship to Joe. It’s all the dynamics all the time.”
In 2001, several members of the Darger family contracted a respiratory virus, and Joe and Alina’s five-month-old daughter, Kyra, wasn’t recovering. (It later emerged that she had an undiagnosed heart defect.) When her condition deteriorated, the family called 911 but couldn’t get through. Joe drove to a hospital, with Alina doing CPR in the back seat. By the time they reached the hospital, Kyra had died. “There were a lot of questions,’’ Alina recalled. “And always, accusingly, ‘You’re a fundamentalist.’ ” Authorities opened a criminal case and interrogated all the Dargers. A nurse came to the house, and then identified herself as an employee of Child Protective Services and interviewed each child alone.
The criminal case was closed after a month and the family-services one two months later, but the automatic suspicion that the family encountered marked a turning point for Joe. “I was, like, We’ve lived in this fear and it doesn’t work,” he said. It was an inauspicious time to start campaigning for plural marriage. In the early two-thousands, Tom Green, a fundamentalist Mormon, was convicted of bigamy and child rape; he had married one of his wives when she was thirteen. In 2006, Warren Jeffs, the leader of the F.L.D.S., who had turned the community at Short Creek into his personal fiefdom, was placed on the F.B.I.’s most-wanted list, for arranging marriages between adult followers and underage girls. In 2011, after two trials—on charges including rape, incest, and sexual assault of minors—Jeffs was jailed for life.
Supporters of polygamy argue that its illegality makes it easier for men such as Jeffs to operate, because women fear that, if they go to the police, they may lose their children. “When you’re criminalizing people who are otherwise law-abiding, you push that suffering under cover of darkness,” Joe said. But he also believes that polygamists have an obligation to confront what the practice has enabled. “It was important for us—both to win public approval and to regain our own integrity—to say we are responsible for Warren Jeffs, our culture created this,” he said. “There’s problems in every culture. Until we own those problems, we’re not going to be seen as responsible people.” The Dargers note that many of the problems associated with polygamy come from factors that can, but often do not, accompany it: child marriage, assigned marriage, lack of education, and poverty.
Joe acknowledges that the system is patriarchal. “But patriarchy is as prevalent in monogamous households as in polygamous ones, and patriarchy is not misogyny,” he said. He emphasized that in households with many women they have a strong voice: “There’s no major decision we make as a family that we’re not unanimous on. We may not all agree, but we’ll all align.”
Alina said, “Why is it that we’re always ‘brainwashed’ unless we’re choosing the way they think?” It’s true that how we grow up influences what we eat, where we live, whom we socialize with or marry. It determines our taste in clothing, our sense of humor, the value we place on formal education. Freud wrote about the “repetition compulsion,” which drives us continually to re-create our own past, whether we were happy in it or not. Do people in the mainstream argue that polygamists have been brainwashed because mainstream values are alien to polygamous ones? If so, were most people brainwashed to idealize monogamous marriage? Animal models suggest that monogamy is less natural than nonmonogamy. Yet violations of it serve as the basis for terminating otherwise healthy relationships. We are brainwashed into keeping pets, taking daily showers, thinking that it makes sense for nations to have inviolable borders; brainwashed about the morality of abortion, the necessity of medical marijuana. People are brainwashed into Jewish culture or Black culture or French culture.
The Dargers’ book came out a month after Jeffs’s final conviction. Alina, Vicki, and Valerie were terrified. One of Joe’s mothers-in-law, who had been swept up in the Short Creek raid as a child, called in tears, begging the family to halt publication. The publisher phoned Joe just before the book went to press, saying that she would understand if Joe and his wives had second thoughts. Kody Brown, who, with his four wives, had recently become the subject of the reality show “Sister Wives,” came to Joe in a panic, saying that his family was under investigation and that his lawyers had advised him to move to Nevada. Joe said, “I’m prepared to be arrested.”
After meeting the Dargers and other polygamists in the Salt Lake area, I drove four hours south to Short Creek, Warren Jeffs’s former stronghold, where the most concentrated community of Mormon-style polygamists still resides. It encompasses two towns straddling the state border—Hildale, Utah, and Colorado City, Arizona—a location that long enabled residents to evade state authorities by crossing back and forth.
The majesty of the landscape—red rocks, red dust, red mountains—is arresting, but as you come into Hildale you pass a white concrete wall surrounding a large, depressing structure that Jeffs built for himself, to house his myriad wives. The town is dotted with other Jeffs buildings, including a gigantic ceremonial hall now converted into a community center; some homes still have the high fences that Jeffs made mandatory.
I walked around town with Donia Jessop and Shirlee Draper, both of whom had been born there in the early seventies and had fled as Jeffs’s reign intensified, only to return later with the aim of rebuilding the community. Shirlee works for Cherish Families, the organization set up by Alina Darger. (Vicki and Valerie Darger are her cousins.) Three years ago, Donia was elected Hildale’s mayor, the first woman—and the first candidate not endorsed by the F.L.D.S.—to hold the position. She proudly showed me a park that had just been replanted. The public school, long closed, is now in use again.
Most residents here are or were F.L.D.S. members, and were therefore subject not only to polygamous unions but also to arranged ones; the ruling elders might pair them with a stranger, or someone they hated, or someone of a completely different generation. In addition, the property of Church members was held in a trust, so you didn’t own your house or land, and if you left you did so with only your personal effects.
Shirlee and Donia both came of age when Warren Jeffs’s father, Rulon, was the head of the Church. (He was incapacitated by a stroke in 1997, at which point Warren took control; Rulon died in 2002.) Donia managed to preëmpt assigned marriage by marrying her high-school boyfriend; they stayed in the community and had ten children. Shirlee’s experience was very different. When she was twenty-three, her father got a call from Rulon Jeffs, and she was married by five o’clock that afternoon. “Because I was raised in the F.L.D.S., it was just the next step,” she said. “It was, like, Here are these crates of tomatoes that I have to bottle. It’s what you do.” She and her husband had three children in quick succession, one of whom had special needs, as did a fourth child, who was born a few years later. Shirlee hoped to fall in love but didn’t.
Shirlee came to bridle at the entrenched patriarchy of the F.L.D.S., more so as Warren Jeffs’s edicts became increasingly extreme. He banned television, the Internet, the radio, and newspapers. He ordered divorces and remarriages, told people to remove their children from public schools, shut down all medical facilities, and expelled many members from the Church. Shirlee knew that she had to get out—and to leave her husband and the two other wives he had taken after her—but it seemed impossible; she had no bank account, no credit history, and hardly any friends or family outside the community. It took her four years to save enough money, and she packed her and the children’s suitcases over several months to avoid detection. She made it to St. George, Utah, fifty miles away, and set up home there. “Taking off your identity and going where you have no support, no sense of belonging is excruciating,” she said. She didn’t want anyone to know that she was a polygamist’s daughter and a polygamist’s wife; in a sense, she was still in hiding.
Others were fleeing Short Creek, and Shirlee, wanting to help them, studied social work at the University of Utah. (She later also got a master’s degree in public administration.) But she found that most of the organizations offering assistance to those who had fled also campaigned against polygamy and required the women they helped to take a public stance condemning the practice. Shirlee found this exploitative and went to work for the Dargers’ non-profit, which doesn’t seek to change its clients’ beliefs or to persuade them to engage in public self-disclosure.
In 2005, a court froze the assets of the collective that owned the F.L.D.S.’s land and buildings. In 2015, Shirlee was appointed to the board of a trust that is gradually redistributing those assets to the people it sees as rightful owners. When she was first approached, she said, “Oh, hell no—my job is to help people get out of Short Creek.” She wanted nothing to do with the place. Still, she believed that those who had built the town deserved ownership. She noticed that most of the residents had left the F.L.D.S. but that all the city council members were still part of the Church. She investigated and exposed extensive election fraud, and led a voter-registration drive that helped get Donia Jessop elected. Since then, Shirlee has set up classes for women on topics including self-defense and financial management—and even a dating class for people unacquainted with the etiquette of romance.
Shirlee rejected her experience of polygamy but believes that her misery was caused not by polygamy per se but by patriarchy. Once, after leaving, she was doing daily household chores on her own and felt an unaccustomed loneliness. “Women are quite social pack creatures,” she said. “We need women.” I often heard similar things among the polygamous wives I interviewed. One recalled being a child and seeing a TV spot that showed a depressed woman lying in bed and told viewers that they didn’t have to be alone. Loneliness is epidemic in contemporary life, but, to a child of polygamous parents, the condition seemed implausible. “My life was so full of people that that didn’t even sound like it was a real thing,” the wife said. What struck me most during my interviews in polygamous and polyamorous communities was that these extensive families created a world sufficient for even their most hesitant members.
Shirlee still seemed to struggle with her ambivalence about the system into which she was born. “Patriarchal structures are horrifying for women, and that includes monogamy,” she said, as we walked around the town. “But if some people choose to live polyamory or polygamy and it works for them, hallelujah, right?”
It was a beautiful afternoon, and she pointed up at the great cliffs that surrounded the town. “Growing up around it, I did not appreciate it,” she said. “It was like wallpaper. After I moved away, it was triggering, because this was the place where so much horrible stuff happened. Only now, recently, I’ve started to really appreciate how beautiful it is.”
Joe Darger was confident about the chances for decriminalizing polygamy in Utah. He believed that, in effect, it already had been decriminalized, thanks to the Supreme Court’s landmark ruling in Lawrence v. Texas, in 2003, which rendered a slew of state laws about cohabitation unconstitutional. “It was just a matter of getting the public to recognize it,” Joe said. He approached other fundamentalist Mormon families, urging them to become more politically vocal. It was hard, not only because people feared legal consequences but also because the many sects were often hostile to one another and resistant to forming a united front. “Early on, I realized this was going to require a three-prong approach—legislative, legal, and public relations,” Joe said. “The public sways the courts.”
Even before the Dargers’ book was published, Joe had started seeking out receptive Utah politicians. Rather than framing the issue as one of freedom of religion—an argument long rejected by Utah and federal courts—Joe framed it as a free-speech matter. “If we purported to be married, that was the felony, but I could call them mistresses—not a problem,” he told me. “Speech is our fundamental, most important right. Everything arises in language, and your identity is defined by language. If you can’t claim your identity, you grow up under a grave injustice.”
In 2008, he met Deidre Henderson, who was just entering politics. Twelve years later, it was she who, as a state senator, sponsored the successful decriminalization bill. (She recently became the lieutenant governor of Utah.) Another early ally was Connor Boyack, the president of the Libertas Institute, a libertarian-leaning think tank in Salt Lake City. Boyack, a mainstream Mormon with no polygamous forebears, supported the decriminalization of polygamy on libertarian grounds. “As a practicing Mormon, I don’t think God has condoned polygamy, just like I don’t think that it’s O.K. to be injecting yourself with heroin,” he told me. “But that doesn’t mean that I should be supporting laws that punish other people who choose to do those things. I don’t drink coffee, but I don’t think Starbucks should be prohibited.”
To Boyack, the fact that the polygamy ban was generally unenforced offered a new way of pursuing the campaign against it. He went on a listening tour, documenting incest that had never been reported, interviewing women who had never testified to heinous abuse because they were afraid their children could be removed, meeting one woman who had never told anyone that she had an autistic child because she feared she would lose him. Henderson held public hearings at which polygamist victims of abuse told similar stories. Boyack said, “When we started talking to legislators in that light—not that this is freedom for polygamists but, rather, that the status quo empowers abusers—we very quickly garnered support.”
Still, the Bigamy Bill faced an uphill battle in Utah’s legislature, which is eighty-six per cent Mormon—although only about sixty-four per cent of the state’s residents are. The L.D.S. Church was thoroughly opposed to polygamy. Boyack believes that mainstream Mormons are embarrassed by the Church’s polygamist past.
The practice began around 1835, when Joseph Smith, the Church’s founder, took a second wife after receiving a revelation about polygamy; he eventually had more than thirty. The 1856 Republican Party platform railed against “those twin relics of barbarism, polygamy and slavery”; the South and the West were both deemed immoral, and a line was drawn between “civilized white society” and that of “backwards savages.” In 1862, Lincoln signed the Morrill Anti-Bigamy Act. By the late eighteen-eighties, it was clear that polygamy would prevent the Utah Territory from securing statehood. In 1890, the Church’s president, Wilford Woodruff, also prompted by a revelation, issued a manifesto renouncing polygamy—a decision that fundamentalist Mormons dismiss as political expediency. The practice became a felony in Utah in 1935. In 2013, it was temporarily decriminalized—not by the legislature but by a judge, who ruled, in a case brought by Kody Brown, that the state’s anti-bigamy statute was unconstitutional. But three years later the Tenth Circuit Court of Appeals ruled that, because Utah did not actually prosecute polygamists unless there were other crimes, the plaintiffs did not have standing, so the practice became criminal again.
By February, 2020, the Bigamy Bill had the cosponsorship of Derek Kitchen, one of only six Democrats in the Utah State Senate and its only openly gay member. Seven years before, he and his partner had sued the state in a case, Kitchen v. Herbert, that challenged its ban on same-sex marriage. They won, and the case led to the legalization of gay marriage in the Tenth Circuit and influenced the Supreme Court’s decision in Obergefell, eight months later. “The L.G.B.T.Q. movement and, in particular, a lot of gay men really embrace polyamory,” Kitchen told me. Many Mormon polygamists were more than happy to make common cause with the gay-marriage activists. “A lot of our first allies were L.G.B.T.Q., and that was brave of them,” Alina Darger told me. “I’ve come to an appreciation for their struggle, and I am a very firm champion that rights are for every person.”
One detail of Kitchen v. Herbert has remained out of the press. “During that time, my partner and I were involved in a polyamorous dynamic,” Kitchen said. “We feared we would jeopardize our case if people found out about us having a third, a boyfriend. But we were with him for three years.” So Derek Kitchen was in hiding about his sexuality even when he was the most visible gay person in Utah. “It took time to recognize that human sexuality is not as square as we make it out to be,” he went on. “Polyamory and even the single life are just as valid as a heteronormative, husband-wife, picket-fence, three-children conversation. I sponsored the Bigamy Bill because there’s plenty of relationships made up of three and four people. When we were debating it, I asked the primary sponsor and our legal counsel, ‘This also means non-married multiple partners, like a polyamorous situation?’ They said, ‘Didn’t think about it, but yeah.’ ”
Eventually, the mainstream Mormon leadership, whose anti-gay policies had increasingly drawn outrage in Utah, concluded that it was fighting a losing battle on polygamy, too. Last February, when Henderson brought her decriminalization bill to the Utah legislature, Church leaders told legislators to vote their consciences. The bill passed nearly unopposed.
Still, even as polygamy gains legal standing, the institution itself looks harder to sustain. Kitchen notes that it’s neither environmentally nor financially viable, and that it requires inhuman energy. In this same period, Utah has seen an upswing in gay couples having babies. “They’re mostly nonmonogamous,” Kitchen said, adding that he hopes to have kids, but not in the context of a monogamous relationship. Kitchen and his husband, despite having won their case for marriage, are now divorcing. “To be completely frank, I don’t know that I’ll engage in marriage in the future,” he said. “It’s nice to know that I’m no longer prohibited. I think marriage entirely is going to fade away. As people feel empowered to take the question of monogamy into their own hands and iron out the displeasures or unhappiness in their lives, they’ll find polyamory.”
Tamara Pincus is a psychotherapist in Washington, D.C., who works with clients who are exploring alternative sexualities, including polyamory, kink, and L.G.B.T.Q. relationships. She defines herself as a bisexual woman who has sometimes dated genderqueer people. Her husband, Eric, is cheerful and geeky and talks about his apostasy from conventional marriage with a nearly religious fervor.
They met in 2000, when Tamara, in her mid-twenties, was working with Eric’s mother at a Jewish community center in Washington. They moved in together within months and were married in 2002. For a decade, they lived a monogamous life, but after the second of their two sons was born they began exploring kink and going to sex parties. Soon, they opened their marriage. Eric accompanied Tamara on her first serious date and sat around awkwardly while his wife and the other man made out and started to remove each other’s clothes. But he recalled how happy and affectionate she was afterward.
The first person to move in with them was a girlfriend of Eric’s. There were other girlfriends, some more full-time than others. One had a jealous husband trying to control her; Eric had no idea how to respond to his intense aggression, and he and Tamara realized that they needed to manage the expectations—and the baggage—of others who entered the setup. “I’m in this committed relationship to Tamara, so if that’s something they can’t handle we have to go our separate ways,” Eric said.
When their younger son was in first grade, he drew a picture of his family on vacation—Tamara and Eric, the two sons, and Eric’s girlfriend. “He drew a car with the four of us in it,” Tamara said. “Then he put the girlfriend in a sidecar. She’s this extra person who came along and played games with them. But they could recognize that she was not in our car.”
Within a few years, Eric had established a relationship with a woman who had two children and was separating from her husband, who is himself polyamorous. Four years later, she and her children moved in. “I love her and wanted her to be part of us,” Eric said. “And Tamara was very happy with her.” Tamara has a boyfriend of nine years. Eric said, “When I was supportive of her doing things, it came back much stronger, because she was, like, ‘Thank you, you made that possible.’ I’m not a very jealous person.”
“The sexual relationship is just easier with newer partners,” Tamara said. “A lot of children of the eighties and nineties saw our parents split because of affairs. We are finding more sustainable ways of doing family. Often, monogamous married people feel like ‘This is what I have to do,’ not ‘This is what I choose to do.’ Every day, Eric and I make a choice to keep this relationship together.” They have both had pangs of jealousy, but less so with time. “Where I mostly get resentful,” Tamara said, “is when he’s fixing something at someone else’s house—because there’s always a huge list of tasks around our house.”
Another partner of Eric’s, whom he has known for three years, stays over occasionally, with her child. Tamara’s boyfriend stays over at least once a week and has a child who regularly stays over with him. The children in the house all regard one another as siblings. Every Friday, Tamara and Eric host a big dinner for everyone, including ex-partners and close friends. “In that picture, we’d all be in the car now,” Eric said. Tamara admits to having worried that her kids would be isolated or bullied because of their unconventional family; Eric had been equally worried that they would encounter anti-Semitism. So far, the children have encountered only tolerance, but they have an awareness that tolerance does not necessarily run deep. After the shooting at the Pulse night club, in Orlando, in 2016, one of them asked, “Do people hate us like they hate gay people?”
Tamara and Eric are out as polyamorous in most contexts, but Tamara’s long-term boyfriend is not. “If he came out at work, he would likely be fired,” Tamara said. According to Eric, the ex-husband of one of his less frequent partners argued that her poly life style was evidence that she was an unfit parent and sued for full custody of their child. The judge declared that her erotic life was immaterial and assigned joint custody. “But another judge might have bought the husband’s argument,” Eric said. “We have no legal protections at all for the way we live.”
Diana Adams, a family lawyer in New York, has become the leading figure in the conversation surrounding the application of existing laws to polyamorous and other unorthodox arrangements. In 2017, Adams, who uses the pronoun “they,” founded the Chosen Family Law Center, which undertakes many such cases pro bono. They work with polyamorous clients who would marry if they could, helping them craft a legal dynamic for their shared life. Adams believes that the establishment of gay marriage produced a backlash against expanded relationship rights, and they encourage their clients to consider other options. “An L.L.C. model is not related to romance, but it’s related to how they can share finances,” they said. “It’s an option I have realized with polyamorous triads and quads. You could say, This family is an L.L.C.—they own properties in multiple places, have a common health-insurance plan and bank accounts, and pay taxes as an L.L.C. People should understand the difference between what we’re creating legally and what you want to vow to emotionally. You don’t need to get married to become a social-welfare state of two or three or four.”
Legalizing poly marriages would require revising the tax code and entitlement programs to accommodate multi-partner families. If joint filing were eliminated from American income tax, the system would no longer favor married couples at the expense of non-dyadic families. The sheer number of rights associated with civil marriage places this country alone among Western societies. Gay people fought, justly, to be included in those rights. But, Adams said, “we’d like to get out of the business of the government deciding whether your romantic relationship has passed scrutiny such that you receive immigration benefits, health benefits, tax benefits, Medicare at death.”
They went on, “We’re seeing a movement away from parenting being defined by DNA and toward its being defined by intention. Getting out of the model of a two-person monogamous marriage as the basis of family is the next frontier.” They note that in earlier eras monogamy was expected of women but not of men. “When we were deciding to make this more equitable, it could have gone in a different direction,” Adams said, adding that they wished society, instead of pushing men toward monogamy, had allowed women nonmonogamy. They went on, “Divorce specialists will tell you we have an epidemic of people saying they’re monogamous, then breaking up families with lies and infidelity. What is harmful is that that infidelity breaks a covenant. What if we think about what we would actually like to create?”
Adams thinks that platonic co-parents, too, should be entitled to some form of recognition. They described a woman who became disabled and whose sister moved in and became the primary parent of the disabled sister’s child. Adams drafted a complex trust so that they could make hospital visits, have shared finances, and buy a house together. “Family is really about people who want to take care of one another because they love one another,” they said. In another case, two male-female couples bonded as a polyamorous quad and were living together. In giving birth, one of the women had a massive heart attack and became severely disabled. Her husband spent the next year taking care of her in rehab centers while the female partner in the other couple became the primary parent of the baby. The husband of the second couple became the breadwinner for all of them. “Despite that horrific and tragic incident, they’ve been together eight years in that format, and they’re a beautiful family,” Adams said.
Adams and their husband both identify as queer, and their relationship has been polyamorous from the start. In addition to their husband, Adams is in long-term relationships with two women and also has a boyfriend; Adams has a five-year-old daughter with their husband and has considered parenting with a gay male friend. Though they live with just their husband and daughter, they are open to cohabiting with another romantic partner. Their work both reflects and facilitates the complexities of their own life.
Adams is wary of making common cause with polygamists. “The very conservative, male, patriarchal image of polygamy is in radical contrast to the very modern, evolved world of polyamory,” they said. All the same, they believe that the women’s decision to lead a polygamous life should be respected—“just as we trust them if they choose to be exotic dancers or sex workers or gestational surrogates.”
Polygamy and polyamory share many features but remain sociologically distinct. Polyamorous behavior exists across social groups, but the terminology is of the chattering classes. Elisabeth Sheff, the author of “The Polyamorists Next Door,” speaks of people who are “safe and privileged enough to come out as polyamorous.” Texts on polyamory have tended to focus on the concerns of white, middle-class, college-educated readers, and skate over historical and cultural boundaries that constrain individual choice. Sheff, noting that Black people are already burdened by stereotypes that depict them as sexually voracious and unable to form stable family relationships, describes “perversity” as “a luxury more readily available to those who are already members of dominant groups.”
Those who said that gay marriage wouldn’t lead to poly marriage often argued that being gay is an intractable condition and being poly is a chosen life style. Helplessly gay people are therefore a protected category; electively poly people are not. But Edward Stein, of Yeshiva University’s Cardozo School of Law, notes that many polyamorists claim to have been drawn to nonmonogamy for as long as they have experienced sexual desire, and that many nominal monogamists have intractable difficulty remaining that way, suggesting that a polyamorous orientation may be both innate and immutable. Sheff said, “For some people, it isn’t a choice—it really is an orientation.” But even if, for the sake of argument, we say that being poly is a choice, is that a reason to say that it warrants no protections? Surely, when we defend the rights of Jews or Muslims, we don’t imply that they can’t help being that way; rather, we confer dignity on a chosen way of life.
By the time that David Jay was about fourteen, his friends had all begun experiencing attractions that he could hardly understand. “Everyone told me that what I wasn’t feeling was one of the cornerstones of a healthy, intimate relationship as an adult,” he told me. “And I was pretty certain that healthy, intimate relationships were what I wanted.” He began to identify as asexual. In 2001, at the age of eighteen, he founded the Asexuality Visibility and Education Network and, soon after, the Web site asexuality.org, which now has more than a hundred thousand members. David is one of the most prominent activists for asexual people—or “aces,” as they are sometimes known.
Some aces don’t seek romantic partners; others want romance without sex; many want to be parents. David found that forming relationships with people who were not asexual was often painful. He would immerse himself in the intensity, but if the person found a sexual partner they would shift their emotional energy toward that other relationship.
In 2010, David, who was then working as a software developer, met Avary Kent, who worked in impact investing, at a conference, and they hit it off; a few months later, Avary introduced David to her boyfriend, Zeke Hausfather, a climatologist. David and Zeke spent many hours talking science. Gradually, David began to introduce intentionality into the relationship. “I said, ‘Hey, I want to have one of those conversations where we name where this relationship fits in our lives, and how we want to build on it, if that’s something you’d be interested in?’ ” They were.
After Avary and Zeke married, they told David, “We’ve decided we want to have kids. There’s a number of people we want to invite into that process in an intentional way. The person we want to invite in most of all is you.” For more than a year, the three of them discussed what this arrangement might look like. They went to a mediator to try to identify areas where there could be disagreement. “We considered how David could do anything from being Uncle David, who drops in from time to time, to being an actual legal co-parent,” Avary said. Ultimately, it was decided that David should move in with Avary and Zeke and be an equal third parent.
Avary found out she was pregnant at the beginning of 2017. The three of them went to birthing classes together. In August, their daughter was born, and they gave her all three of their surnames; she is Octavia Hausfather Jay Kent (Tavi for short). David initiated an adoption process as soon as Tavi was born, and the three adults signed a co-parenting agreement that stipulated what should happen if any of the relationships frayed.
I first met the family when Tavi was four and a half months old. They were living in San Francisco, in an airy, spacious apartment that had a vaguely hippie vibe. Zeke said, “The more people we have involved with raising Tavi, the easier it is for each of us individually, and the easier it is for us, the better it is for her.” Avary had disliked the version of new motherhood in which sleep deprivation was “a badge of honor.” She believed that their arrangement was deeply traditional. “I think that the whole nuclear-family thing was a strong departure from how humans were accustomed to being in community and in family and raising children together,” she said. The three of them continued doing quarterly counselling—“to make sure we can air things out in front of a neutral third party,” Zeke said. David patted him on the arm. “Fourth party,” he said.
Thanks to shared parenting, Zeke and Avary are able to go out on date nights, and David sometimes goes blues dancing. They all belong to a sci-fi book club, and they hold a family check-in every Sunday, to divvy up household chores and allocate time with Tavi. When she was a baby, Avary and Zeke would take her to David’s room every night, at around three o’clock. The three of them opened a joint account for child-related expenses and contribute to an educational-savings account for Tavi. They have noticed that, if Zeke and David take Tavi out for a walk around their neighborhood, people usually assume that the two men are a married gay couple. It’s an assumption that no one could have made a generation ago.
The story of American deinstitutionalization has become familiar. In a long arc—from President Kennedy’s Community Mental Health Act of 1963 to the present—federal and state governments dismantled mental asylums and released the psychiatrically disturbed into the world. Though there were sometimes brutal abuses in the state mental hospitals of the early twentieth century, the closure of the asylums did not put an end to mental illness. If anything, with the proliferation on the streets of psychosis-inducing drugs such as methamphetamine, the United States has more cases of serious mental illness than ever before—and less capacity to treat and manage them.
The question now is not, “What happened to the asylums?” but “What replaced them?” Following the mass closure of state hospitals and the establishment of a legal regime that dramatically restricted involuntary commitments, we have created an “invisible asylum” composed of three primary institutions: the street, the jail, and the emergency room. In slaying the old monster of the state asylums, we created a new monster in its shadow: one that maintains the appearance of freedom but condemns a large population of the mentally ill to a life of misery.
I’ve spent the better part of two years looking at this invisible asylum in West Coast cities. In major metropolitan areas such as Los Angeles, San Francisco, and Seattle, the scale of mass psychosis is overwhelming, and the inadequacy of the public response is self-evident. It’s difficult, if not impossible, to imagine how public officials could “solve” the problem of mental illness in these places, which are home to tens of thousands of individuals suffering from the “perilous trifecta” of mental illness, addiction, and homelessness. By contrast, the contours of the problem are much more intelligible, even manageable, in smaller cities and towns.
Olympia, Washington—a city of 52,000 tucked between a joint military base and a state forest—is one such place. In Olympia, approximately 250 individuals have become entangled within this broken system of care, cycling through the streets, the local jails, and the emergency ward at Providence St. Peter Hospital. A half-century ago, many, if not most, of these wayward souls would have been institutionalized. In 1962, Washington State had 7,641 state hospital beds for a total population of 2.9 million; today, it has 1,123 state hospital beds for a population of 7.6 million—a 94 percent per-capita reduction.
In the absence of the old asylums, Olympia’s mentally ill are now crowded into a city-sanctioned tent encampment, then shuffled through the institutions of the modern social-scientific state: the jail cell, the short-term psychiatric bed, the case-management appointment, the feeding line, and the needle dispensary. In the name of compassion, we have built a system that may be even crueler than what came before.
It’s 8 AM, and the streets of Olympia are at low tide. After months of coronavirus lockdowns, all the businesses in the downtown core have shut down, with some restaurants, salons, and tattoo shops boarding up their windows altogether. The only people remaining are those with nowhere to go: the homeless, the mad, and the addicted.
Patrol Sergeant Amy King and Officer Patrick Hutnik, who oversee the downtown area for the Olympia Police Department, take me on a tour. The officers are working their morning rounds, rousting awake people sleeping in doorways and asking them to move on. We see a slumped-over man who has soiled himself overnight, a man wrapped in cardboard complaining that his tent got stolen, and three women behind a barricade of shopping carts and filthy blankets. One of the women is tying off her arm with a blue rubber strap but loosens her grip when she sees us; the other two are barely cognizant, blinking at the officers and lifelessly nodding their heads.
The cast of characters in Sergeant King’s world is a difficult one. Hai air-fights through the streets because he believes monsters in the ground want to enter his body. Michael, an old man, calls 911 many times per day but doesn’t qualify as “gravely disabled.” Suburban Gary lives in a broken-down Chevy Suburban full of trash but refuses all offers of housing or services. And John, wheelchair-bound and covered in sores, huffs paint in front of officers because he knows he’s “untouchable”—the hospital will not take him, the prosecutor will not move on his criminal cases, and the psychiatrists cannot send him for involuntary treatment.
Following the downfall of the old regime of state asylums, local jurisdictions have had to create their own makeshift mental-health systems. In Olympia, as a growing population of mentally ill and addicted individuals began to overwhelm downtown, the city council decided to open the “mitigation site,” a publicly funded tent encampment for 150 residents. In theory, the site would provide centralized shelter and access to services; in practice, it functions as an open-air asylum—with none of the protections of the old hospitals.
Brandon, who helps manage the mitigation site for the City of Olympia, tells me that the people arriving here are “in the gutter.” He estimates that 95 percent have a substance-abuse disorder and nearly 100 percent have a mental-health condition. Though the city continues to distribute glossy photos from the site’s opening day, the reality on the ground is grim—open drug use, fighting, crime, and even a tent filled with used needles. Brandon says that “thousands of rats” have tunneled under the site and will chew through the wooden pallets beneath the tents and the plastic walls of the tiny homes. “There’s soy in the plastic,” he explains. “It’s like candy to rats.”
“The city’s police force has nicknamed the mitigation site ‘The Thunderdome,’ after the Mad Max movie.”
By ordinance, the city provides mitigation-site residents with basic social services and some access to care. Sean, a resident recently released from prison in Idaho, landed at the site and got a prescription for bipolar disorder “on the spot.” He shows me a plastic freezer bag filled with bottles of carbamazepine and duloxetine, and explains his predicament: “I found out, after 40 years, that I was bipolar. I lost relationships, job, marriage. Now I’m trying to put everything back together.”
But for most other residents, there is no treatment or recovery—only the punishing routine of the needle, the pill, and the breakdown. The city’s police force has nicknamed the mitigation site “The Thunderdome,” after the dystopian Mad Max movie, because of the raucous nights, with residents yelling, overdosing, and assaulting one another. One former resident said that her boyfriend kept her imprisoned in a tent there, plied her with methamphetamine, and put a knife to her throat when she tried to leave—all under the supposed supervision of city officials.
As they finish their morning rounds and head back to the station, Sergeant King and Officer Hutnik find a disheveled, shirtless man, passed out with his body extending into the street. Officer Hutnik politely wakes him, and the man, known as Angry Marty, begins screaming about zombies and food lines down at the mission. He manically gathers metal piping tubes from the ground and bangs them into a shopping cart. “There is going to be a mob that finally takes over this city!” he screams. “They’re going to kill you! They’re going to kill you!”
Under the current policy regime, this madness has become an eternal recurrence: the officers will see Marty again tomorrow morning, as he suffers through another drug-terror, and they must leave him to fend for himself.
As we head back to the station, we can still hear Marty’s cries in the distance.
“Is that compassion?” Sergeant King asks, disappearing into the doorway.
The Olympia Municipal Jail is the second link in the city’s invisible asylum. It’s a small, doughnut-shaped building tucked behind a Japanese garden, with white and blue stucco walls. The jail has 36 beds, but the city generally won’t hold more than 28 inmates at a time because the old HVAC system can’t handle full capacity.
After checking in at the front desk, Officers Holmes and Esselstrom take me through the facility. They show me the intake desk, the single-stall shower, and the suicide-watch room. They lead me through the narrow hallways and flip open the steel viewing windows, so I can see the men and women inside the cells.
I ask the officers how many of the inmates suffer from mental illness. Officer Esselstrom says that they conduct an intake interview for every inmate and that “at least 90 percent” say that they have been diagnosed with a mental illness or have recently received psychiatric care. The officers explain that they see the same faces, over and over, often for the same crimes. “Some people have 40 different booking photos,” says Officer Holmes, explaining that the officers sometimes play a game in which they listen to the police radio and try to predict who will come to the jail based on the nature of the call, crime, and location.
Hannah is one of the inmates who has returned frequently over the past year. She walks up to the metal visitation grate with some hesitation, but after she learns that I’m not a representative of the courts, she tells me her story in a rapid-fire monologue. Hannah grew up in Auburn, California, and says that she was abandoned by her parents, and then abused by her grandmother. She was diagnosed with ADHD as a preteen, and after a series of fights and “explosive behavior” in high school, she was re-diagnosed as bipolar. She says she got pregnant at 17, then lost the baby when she rolled her car and the seatbelt crushed her stomach—which sent her life into a spiral. Over the next four years, she started using methamphetamine, checked in and out of psychiatric facilities, and then came to Olympia “to start over.”
That plan fell apart, too. For the past year, Hannah has lived on the streets and at the mitigation site with her boyfriend, a man twice her age and “a drug dealer and a pimp.” According to Hannah, they have been involved in a long-running domestic dispute—knives, choking, biting, drugs—and, despite mutual restraining orders, she always goes back to him because “it’s hard to say no when he shoves meth in my face.” Today, she has dirty hair and cracked skin, but it’s easy to see that she was once beautiful. Officers told me that her mother once came looking for her and brought an old high school portrait of Hannah with long hair and intricate makeup—but when the mother eventually found the daughter on the streets, she told everyone that Hannah was her boyfriend’s responsibility and promptly left town. Now Hannah is stuck on the streets and, when her methamphetamine addiction and bipolar disorder manifest as violence, she ends up in the city jail.
Such stories are commonplace. Across the United States, the jails have become de facto psychiatric hospitals. Bruce Gage, lead psychiatrist for the Washington State Department of Corrections, estimates that 20 percent to 30 percent of state prison inmates suffer from serious mental illness. The Monroe Correctional Complex outside Seattle, with nearly 500 beds for the mentally ill, is now the second-largest psychiatric facility statewide; only Western State Hospital is larger. “It used to be called deinstitutionalization,” Gage recently told the Seattle Times. “Now it’s called trans-institutionalization. We took everyone out of the state hospitals, and they pretty much, the same population, ended up in prisons and jails.”
This transition from asylum to prison has reached an astonishing scale. According to a study of 18,000 inmates in the Washington State prison system, 44 percent of inmates were determined to have mental-health disorders and 51 percent to have substance-abuse disorders—and 31 percent had both diagnoses simultaneously. Even the old flagship, Western State Hospital, has become a predominantly carceral environment, planning to accept only “forensic patients” who can no longer be held safely in state prisons.
The irony is devastating: as a society, we recoiled from the old asylums, but we have built in their place a parallel system that serves the same function, often under even more brutal conditions. We have adopted a new moral logic that says, “You have the right to be mad, but if you follow that madness to its logical conclusion, there is a prison cell waiting for you.” Under the weight of a cultural revolution against the asylums and civil rights lawsuits against involuntary commitment, a prison sentence has become the easiest option. The mentally ill get subsumed into the criminal class.
The final link in the invisible asylum is the psychiatric emergency room. In Olympia, this means Providence St. Peter Hospital, home to an 18-bed psychiatric unit that functions as the first stop for people coming off the streets in crisis. According to Sue Beall, the hospital’s director of behavioral health, the emergency psychiatric department receives approximately 500 people a month presenting symptoms of acute mental illness and substance-abuse disorders.
Beall describes the hospital as “overwhelmed.” The number of patients seeking emergency psychiatric care has risen rapidly in the past few years, and the hospital frequently operates beyond its regular capacity, issuing “single bed certifications” and allowing people to rest on cots in the hallways and mats on the floor. The severity of the cases has increased, too. Beall estimates that, as recently as a few years ago, only 20 percent of patients needed inpatient treatment; now that figure is between 50 percent and 60 percent. The result: doctors, nurses, and support staff are “spread too thin” and burning out under the pressure of the city’s “revolving door” of addiction, psychosis, and emergency care. Emergency rooms throughout the region are so pressed with mentally ill patients that doctors have adopted a policy of “treat ’em and street ’em”—that is, get patients medically stabilized and out as fast as possible, to prepare for the next onslaught.
To reduce the burden on emergency providers, the City of Olympia recently hired a Crisis Response Unit to patrol the streets and build relationships with the most seriously mentally ill. The team—six men and women in matching aqua-blue shirts—is headquartered in an open loft space on the second floor of a downtown storefront. According to program coordinator Anne Larsen, the Crisis Response Unit engages in more than 250 contacts a month, offering case management, referrals to services, and even transportation to medical appointments. Yet despite some successes—a woman placed into permanent housing, another living with her sister on the Eastside—the team spends most of its time managing a population of a few hundred mentally ill and addicted people who continually cycle through their care.
When I arrive in the Crisis Response Unit’s offices, the team is gathered around an old laptop and problem-solving some of their most difficult cases. They’re talking through the file for Eddie, who was living with his mother in rural Pacific County until she couldn’t handle his mental illness, packed him up in an Airstream trailer, and dropped him off on the streets of Olympia. Eddie began hoarding trash in his trailer, increased his drug use, and rapidly deteriorated. Eddie’s sister recently came looking for him and, together with the crisis response team, tracked him down on the streets. They’re trying to petition the court for a Joel’s Law detention—a form of involuntary commitment for drug psychoses—but they have hit a bureaucratic roadblock.
According to the crisis workers, it’s very hard to get any kind of involuntary detention. Larsen says that the Crisis Response Unit requests only one psychiatric hold evaluation per month, on average, because the standard is so high and varies so widely from doctor to doctor. The people on the streets, most of whom have gone through repeated evaluations, have rehearsed the answers that will get them immediately released: “I’m not a danger to myself or others, I know where I can sleep, I know where I can get food.” When I ask the team how difficult it is to get a long-term involuntary commitment at Western State Hospital, their response is unanimous: “Impossible.”
In total, according to the latest available data, designated crisis responders filed 1,599 petitions for involuntary holds in Thurston County, and the courts approved only 411 cases for inpatient detention—and the vast majority of these were for short-term, 14-day holds. To illustrate how challenging it is to secure an involuntary commitment, crisis workers told me that they once found a woman eating a dead rat in an alleyway, but this did not qualify her as “gravely disabled”; the reaction from relevant officials was that “at least she’s eating.”
The mentally ill end up playing a game of cat and mouse with the authorities. Jeremiah, a 32-year-old man in recovery from bipolar disorder and alcohol and methamphetamine addiction, told me that he would run wild in the streets: “I would be screaming at traffic, jumping up and down on cars, yelling and cussing at families, saying their kids are my kids.” At the end of one vodka-fueled bender, Jeremiah passed out on the train tracks and lost both his arms to the heavy steel of a freight locomotive. Even after his accident, the police department and crisis response team spent years trying to get Jeremiah help, following him through a series of short-term emergency visits, psychiatric evaluations, and stints in the municipal jail.
Finally, something changed. Larsen, the program coordinator, pulled every lever at her disposal and organized the entire apparatus of local government to pressure Jeremiah into accepting treatment. It took a massive mobilization—involving a hospital ward, an evaluation center, a jail term, two treatment programs, a halfway house, a street intervention, and a warrant hearing—but eventually Jeremiah relented. I asked him what had changed, and he said: “I called my mom on Mother’s Day from jail. I wanted to do something with my life.”
Jeremiah now stays at a recovery home on the edge of town. When I visit him there, he says that he has been sober for more than a year. “It’s my longest time clean since I was 11 years old,” he says. Jeremiah still distrusts authorities—when I took out my notebook, he asked if I was trying to get him recommitted—but acknowledges that he wouldn’t have gotten clean without the intense pressure of the local government. “Treatment was necessary,” he says, “even if I didn’t like how it came to me.”
In 1961, French theorist Michel Foucault reenvisioned the history of mental illness in his book Madness and Civilization, which documented the role of confinement, morality, and medicine from the Middle Ages to modernity. Foucault yielded some profound insights, but, like his radical-progressive American counterparts, he savaged the practice of confinement without proposing a substantive alternative.
Nearly 60 years later, it has become clear that the liberationists of the 1960s did not usher in a new era of freedom but something far darker. By reducing the entire cultural history of madness to one long progression of brutality, imprisonment, and false care, they laid the political groundwork for deinstitutionalization. At the same time, their insistence that mental illness was a “myth,” that it could be cured by new psychiatric drugs, or that it would be transformed through political consciousness turned out to be wrong.
Today, a consensus is emerging that deinstitutionalization went too far. In Washington State, a bipartisan coalition of legislators has implemented the beginnings of a reform agenda. In the past few years, the legislature has added acute substance-abuse disorder as a condition for involuntary treatment, extended the initial involuntary hold period from 72 hours to five days, and adopted plans to add 844 new inpatient psychiatric beds across the state. The state mental-health budget has nearly doubled in recent years, with widespread support from both Democratic and Republican lawmakers.
Do these reforms go far enough? Probably not. Washington hopes to increase its psychiatric bed capacity to 1,763 beds by 2025, or 23 beds per 100,000 residents. While that’s a significant increase from the current baseline, the goal still falls far short of the historical average of 263 beds per 100,000 at the height of the asylum period. Though advances in psychiatric drugs and outpatient treatment could reduce the total need for inpatient beds, it’s illusory to believe that we can operate at 9 percent of the capacity of the 1960s. For anyone who has witnessed the great masses of the mad wandering the streets of American downtowns, it’s obvious that our cultural and legal intransigence against confinement cannot hold.
Frontline workers in the current system understand this reality but hesitate to offer their full-throated endorsement of rebuilding the hospitals. When I ask Sergeant King for her opinion on the need for more involuntary psychiatric beds, she replies cautiously. “I have to be careful. I don’t want my words twisted,” she says, calibrating her language in order to avoid the charge of “criminalizing” mental illness. “I think we were too restrictive in the past, but we’ve swung the pendulum too far in the other direction.”
Perhaps what’s most needed is a renewed theoretical defense of the principles of the asylum—safety, rest, morality, and health—that Foucault and his compatriots demolished. This does not mean a return to the historical practices of the asylum but a revival of the spirit that animated the care and moral reasoning of the old retreats and hôpitaux. It is a moral scandal that our society, which has surpassed the material wealth of the nineteenth century 16-fold, cannot provide an adequate sanctuary for the mad and the unmoored. It’s easy to condemn the horrors of the old state hospitals, but the horrors of the invisible asylum may exceed them.
In my short time on Olympia’s streets, I heard about a litany of abuses and indignities that occurred under our current regime—a disabled man whose feet are rotting off, a woman hunted down like prey, a woman waking up on top of a corpse.
But the neglect is even more heartbreaking. Whenever I consider today’s system, I see the awful silhouette of a young man crumpled across a restaurant ingress, bare-chested and overwhelmed with madness. He introduces himself as Harrison and, revealing a Hindu-style third eye tattooed on his forehead, rattles on about angels and demons. He points to Officer Hutnik and says: “I once cured you of an infection.” Then he picks up an old Rubik’s Cube from his pile and, twitching with feverish intensity, points to the white squares and says, “This is where you can find me anywhere in the universe.”
A more muscular system of care could help this haunted soul. After we say good-bye to him, Hutnik tells me that he remembers Harrison from his time as a correctional worker at the Thurston County Jail a decade ago. “It’s amazing how you see another side of people after they’ve detoxed and gone on medication in jail,” Hutnik says. And this is precisely the insanity of our current system: in fear of “criminalizing mental illness,” we have simply delayed care until the mentally ill engage in explicit criminality. We thus condemn legions of vulnerable people like Harrison to street, jail, or emergency room. Until we rebuild the physical capacity and moral strength to help them, nothing will change.
Christopher F. Rufo is a contributing editor of City Journal and director of the Discovery Institute’s Center on Wealth & Poverty. He has directed four documentaries for PBS, including his new film, America Lost.